ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029771
Parties:
| Complainant | Respondent |
Parties | Ann Doherty | St John Of God Services |
Representatives | Self-represented | Eoin Haverty, IBEC |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00039483-001 | 31/08/2020 |
Date of Adjudication Hearing: 30/11/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 30th August 2020, the complainant referred a complaint pursuant to the Employment Equality Act. The complaint was referred to adjudication on the 30th November 2021. The complainant attended the adjudication. The respondent was represented by Eoin Haverty, IBEC and Patricia Larkin and Jenny Smith attended as witnesses. The hearing was held remotely.
In accordance with section 79 of the Employment Equality Acts, 1998 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant outlines that she was discriminated against in not being allowed work from home during the pandemic and in being moved role. The respondent denies the claim. |
Summary of Complainant’s Case:
The complainant outlined that she felt that she was left with no option but to take sick leave during the pandemic. She was not given the same options as other parents or as other pregnant women. Some people were placed on call in a covid isolation ward with the understanding that they would not be called on. Others were able to have reduced hours. Others worked at home, availing of zoom calls to contact service users as an alternative to frontline services. The complainant said that this had a negative effect on her mental health and her financial situation. She went on half pay. The complainant sought clarity from the respondent and was then sent work to do at home even though she was on sick leave. The complainant referred to the text messages asking that she work and there were also phone calls about work that she was obliged to do at home. The complainant said that she did this work as she wanted to be able to work from home. The complainant said that she was doing this at the same time as looking after her one year old child. The complainant outlined that she was to return to work in August 2020. She worked in a large hall and her desk was far from the three other desks in the room. The complainant said that her childcare reopened on the 10th August 2020 and her child returned to creche. The complainant said that the respondent contacted her to say that she would be moved from a non-public facing role to a public-facing role even though she was 30 weeks pregnant at the time. The complainant said that she was to be redeployed to a social care setting, where there were bedrooms around a cluttered centre room and a small kitchen. The complainant said that she sought to contact the manager of this facility and he said that he was on annual leave as was a named colleague. The complainant said that her doctor then placed her on cocooning leave. The complainant said that her manager, Jeanine Scanlon had asked her for a cocooning cert at the start of her pregnancy so that the complainant would stay on full pay. The complainant later discovered that she was not on full pay, and Jenny Smith the HR Manager told her that there were different levels of cocooning and different levels of cocooning pay. The complainant said that she asked the HR Manager for the respondent working from home policy and the cocooning policy and they were never provided to her. The complainant said that she thought that there was a cocooning policy as the respondent referred to there being differing levels of cocooning and levels of cocooning pay. The complainant said that she was on cocooning leave from August 2020 at the time she was 32 weeks pregnant. The HR Manager said that the complainant was not at risk and sent her the policy for pregnant healthcare workers. The complainant said that she was not a healthcare worker, but a social care worker. The HR Manager pressed that the complainant return to work in the social care setting but the complainant did not agree to this. The complainant said that the HR Manager asked her what was wrong with her and whether the complainant was able to go to the shops. The HR Manager cited that the complainant’s daughter was in creche. The complainant referred to one phone call with the HR Manager as being a barrage. The complainant said that she was upset and that her manager had said that she should get counselling as the phone call had not been appropriate. The complainant said that she was being treated differently to others. The complainant said that she was referred to an occupational health assessment. The complainant said that her manager told her that others were also referred to this assessment, but the complainant did not know of anyone else. The complainant said that she was then certified as unfit to work on stress grounds. The complainant said that she had panic attacks and was hospitalised. She described this as being scary as she was pregnant. The complainant said that she was passionate about her job, and she thought that this would stand for something with the respondent. The complainant said that she had recently resigned her employment as this was a humiliating experience. She said that it felt like coercive control, and she had found another part time job. The complainant outlined that she commenced with the respondent on the 4th January 2016 as a social care worker in residential services. She was accused of being sexual with a service user in front of others and was reported to the social work department. The complainant said that this allegation was completely untrue. The person in charge of the centre had wanted to forget about the issue but the complainant chased the matter up. The complainant brought it up with social work department and she had a meeting with three members of staff including the named colleague who made the initial accusation. The complainant outlined that the named colleague apologised to the complainant and the named colleague said that she had over-reacted in making the allegation. This incident occurred in the residential setting in Celbridge which was a residential house for men with intellectual disabilities. The complainant said that she felt that she could no longer do a role involving intimate care, so she took on a role as instructor in the ‘My Work’ team. She did this from July 2016 to April 2019. This provided a day service to support people in the community. She reported to Jennifer Sherlock who reported to Des Balmer. The complainant described this as her dream job and based in the Celbridge campus. She said that they would engage with people in the community and tried to find people jobs or supported people in employment. The complainant said that they had a great team and the service users achieved so much. They tackled challenging behaviour and she had now moved to a job with the same supervisor. The complainant said that she went on maternity leave in 2019 and the structure had changed on her return from maternity leave in October 2019. The operations manager asked the complainant to move to employment services and she had an idea to set up a company to support clients. This was an office-based role, and she was an employment support instructor. The complainant would meet employers and service users and support people in getting to work, for example in travelling to work or she would give them a lift. The complainant said that she supported 24 people and there was a lot of paperwork in the role. The complainant said that there were issues in the service as the paperwork was abysmal. There had been no record of where staff were going, and some staff were not showing up for work. She described employment services as being a mess and she went to the operations manager a number of times with ideas. The respondent advertised the supervisor role, which she applied for. Jenny Smith and Leo Gordon were on the interview panel. The complainant said that she went into the interview blind while the colleagues who were interviewed afterwards had the interview questions. The complainant said that Jeanine Scanlon got the job and started in this role on the 16th March 2020. The complainant said that the service went into lockdown on the 13th March 2020 and the complainant had pre-booked annual leave for that day and for the next week. She had no childcare available and was pregnant. The complainant said that she contacted the operations manager on the 18th March 2020 to find out what was going on. He said that her annual leave was not being approved but said that she could take parental leave. The complainant commented that Jeanine Scanlon was still working. The complainant said that this was a huge time with employment services as many service users were still in work. The complainant said that she could have provided support over the phone and the internet. The complainant said that some 50 to 60% of her clients worked in retail and others worked in nursing homes. The complainant said that she was not placed on lay-off. She said that there was a suggestion of a role in residential services, but she was very reluctant to ever work in such a role again and she had no childcare at the time. The complainant said that she was not offered the facility of working from home. In a conversation with the operations manager, the complainant said that if she could not work from home, her only option was to take sick leave. The operations manager said that the complainant could not work from home and agreed that the complainant’s only option was to take sick leave. The complainant cited that other staff were allowed to work from home. The complainant referred to Jeanine Scanlon and Paula Green being afforded this, although Ms Green had initially done a few residential shifts before being allowed work from home. These colleagues did not have the same childcare needs as the complainant as they are single women who did not have children. A named male colleague had been redeployed to residential services but was then working from home. This colleague had three teenage children and his wife was a teacher. The complainant outlined that the respondent then asked the complainant to do work at home, for example to contact staff and to participate in zoom calls, after receiving her sick cert. There were many phone calls as well as the text messages. The complainant said that she was asked to go into work to update her password even though she was on sick leave. The complainant said that she did not attend work to change her password. The complainant said that she received the check-in text on the 30th April 2020 and said that she would undertake the work but should be paid. The complainant said that she was warned that if she went off sick leave she would be redeployed. The complainant said that Jeanine Scanlon warned her about a pregnant colleague who was redeployed to the named facility and Jeanine Scanlon said that she was begging to go sick. The complainant said that this colleague was being paid full time hours. The complainant outlined that she informed the respondent that colleagues who were pregnant and those with childcare needs were allowed to work from home, but she was not. The complainant was informed that this was decided on a case-by-case basis, but she did not know who was looking after her case. The complainant outlined that she had been initially on full pay for the first three months and then on half pay for the following five months. She then exhausted her entitlement to sick leave. The complainant outlined that the operations manager knew that she was helping Jeanine Scanlon out as she had mentioned that the operations manager knew in a text message. The complainant outlined that she did not want to continue to work at home while on sick leave after the work asked of her in the message of the 30th April 2020. The complainant said that she raised this with the operations manager who did not want to hear about it. The complainant described that the operations manager was dismissive and said that it was not possible for people to work from home. The complainant said that a friend of hers was working from home (the friend was also an employee of the respondent). The complainant outlined that her friends was male, not pregnant and had childcare support available to him at home. The complainant outlined that this friend works for the respondent and does not report to the operations manager. The complainant outlined that she was upset and angry. She then suffered a very serious panic attack and was admitted to the psychiatric ward of a hospital. She stated that she was admitted voluntarily and did not need to be committed. She outlined that the psychiatrist recommended that she not engage with the respondent and that she take sick leave as sick leave. The complainant outlined that Jeanine Scanlon rang on the Monday in May to say that the complainant might be able to work from home. The complainant replied that she would not be engaging with work as she had been stressed and hospitalised. There was contact at this time about the phone number of a client and an employer. The complainant outlined that Jeanine Scanlon contacted her in July 2020 about going back to work. The complainant said that she could return in August 2020 when her childcare reopened. Ms Scanlon informed her that everyone was working from home at this stage, and she had to wait for the complainant to return to take annual leave. The complainant said that she had understood from the conversation that she would be working from home but said that she was happy to go into work. The complainant said that it was an appropriate place to work as the size of the venue facilitated social distancing. She was also willing to use her own car which she could ensure was properly aerated. The complainant then said that she was then contacted to say she was being transferred to the setting in Maynooth. She was informed of this by Jeanine Scanlon in or around the 6th August 2020. Ms Scanlon did not say why. The complainant said that as this was a transfer out of the operation manager’s programme, she tried to contact him. He was on annual leave until the 31st August 2020 and said that she should contact Leo Gordan or ‘the girls’. The complainant said that she did not know who ‘the girls’ were. The complainant said that she attempted to call Leo Gordan, but he was also on annual leave. This made sense as the service was on annual leave for two weeks, but this did not apply to employment services which continued to run. The complainant said that she did not get answers why she was being transferred to Maynooth and out of the programme to a more public facing role. The complainant said that it was apparent that the respondent did not want her back. The complainant said that you did not transfer someone out who is 30 weeks’ pregnant during a pandemic. The unit she was being transferred to was a small day service unit with 22 people. The complainant said that she was simply told that this was happening. The complainant outlined that she attended a routine medical appointment, where the consultant recommended that she cocoon. The complainant said that Jeanine Scanlon had already advised that the complainant should cocoon and that she should be on full pay. The complainant had not wanted to do this and wanted to work. The complainant supplied the medical certificate to HR and expected to be on full pay. She was spending €250 a week on childcare. The complainant said that she did not know who the supervisor of the named facility was. She outlined that no one had contacted her from the named facility. She said that Leo Gordan was the programme manager, and he did not speak with her. She said that this process was different to when she had previously transferred from residential care to employment services (within the respondent) when the incoming manager had an informal conversation with her. There was no such conversation with the incoming manager, i.e. Mr Gordan. The complainant said that she realised that she was not then being paid in full and contracted HR. The complainant said that she was informed that she was then on sick pay as this was the appropriate rate of pay if she was cocooning. She was referred to the HR Manager. The complainant spoke with the HR Manager and described that the HR Manager had sought to railroad her into doing the job at the day centre. The HR Manager questioned whether the complainant was really cocooning. The complainant described that during this conversation, the HR Manager was calm and collected when she was upset. The HR Manager advised that the complainant engage with counselling and the complainant said that she found this to be insulting. The complainant said that as it happened, she was getting counselling. In the conversation, the complainant said that she pressed for copies of the policies while the HR Manager pressed that the complainant return to work. The complainant outlined that she was to meet the HR Manager and the operations manager about returning to work, but she did not see this as a safe option as she was 32 weeks pregnant. She said that she was being pressured to work in a social setting providing intimate care. The complainant said that she was referred to occupational health when she refused to attend the meeting. The occupational health assessment was that there was no reason for her to cocoon. The complainant said that colleagues who were also cocooning had been referred to occupational assessment, but the HR Manager could not point to any rationale why the complainant was referred to an assessment. The complainant outlined that she was on sick leave until the start of her maternity leave. This commenced on the 20th October 2020 and ran until the 23rd November 2021. The complainant said that she was left alone in this period. The complainant said that she had wanted to work it out with the respondent and sought mediation. She said that the respondent had failed to engage in the mediation. The complainant said that she has lost a job she really loved. It was very convenient for her, and she felt like she was cheated out of the job she really loved. The complainant said that she would have liked to have worked there for years and her confidence was shattered by what had happened. She confirmed that her rate of pay with the respondent was €42,500 per year. In cross-examination, the complainant said that the reason for the sick leave from March 2020 was because she had no other option as the respondent did not provide a suitable working environment. She was signed off on monthly blocks and the certificate was provided to facilitate the situation. The complainant said that she had discussed this with the operations manager. The complainant said that employment services remained opened, and the manager Jeanine Scanlon were still at work and new to the role. The complainant said that the operation had not reduced and the need for the role had not reduced. The complainant outlined that she was never given a fitness to return to work certificate. The complainant said that she was familiar with cocooning and that this was where someone has an underlying condition that places them at a high risk from pandemic. It was put to the complainant that cocooning was for people who were pregnant with heart difficulties such as her; the complainant confirmed that she had obtained the certificate from the consultant. It was put to the complainant that she had been on full pay until the 15th June 2020 and then cocooning from August 2020 to the commencement of her maternity leave; she replied that she went on half-pay from the 18th May 2020. In respect of being able to continue the employment services role, the complainant said that she could make her car safe to transport clients and would wear a mask and have windows opened. She said that she could control the environment. The complainant said that the named facility was not safe as it did not allow for social distancing and there were no large windows to open. The complainant said that she could not have forced service users to wear a mask or to observe social distancing. The complainant described that her employment services role working at the office or on the road, meeting people. The complainant said that she would have been able to transfer this role to her sitting room. She referred to three clients who worked in retail but who could not continue their roles in retail. She could have supported these three clients on the phone as they needed support in managing money and engaging with the community. The complainant referred to the service supervisor as working from home. In respect of maternity sick leave, the complainant said that it was her understanding that this was three months on full pay and half pay there on. The complainant outlined that she should not have been on sick pay at all as she should not have been pushed to have to take sick leave. She said that she submitted the cert as she had no other option and not given the same options as her colleague. She outlined that her application for annual leave was declined, and it was not possible for her to take unpaid parental leave. The complainant said that she was not allowed to work from home. The complainant said that the operations manager agreed that her getting the sick note was the best course of action. |
Summary of Respondent’s Case:
In submissions, the respondent denies that the complainant was discriminated against on the family status ground or on any of the other grounds under the Employment Equality Act. The respondent submitted that day services closed as a result of the pandemic and staff redeployed. This took account of the staff member’s underlying conditions, childcare duties, and their circumstances. The complainant submitted medical certificates commencing the 25th March 2020. The complainant submitted further medical certificates. The respondent submitted that day services reopened in June/July 2020 and that the complainant indicated that she would return in August 2020. The respondent outlined that on the 7th August 2020 the complainant was informed that it intended to redeploy the complainant to the named setting. The complainant submitted the medical certificate on the 14th August 2020. The respondent outlined that the occupational health assessment confirmed that the complainant was unfit for work and therefore entitled to sick pay and was not cocooning. The respondent outlines that staff were redeployed from day services in line with HSE policy. The respondent submitted that as the complainant was deemed not fit for work, she could not be cocooning as this required her to be fit for work. It submitted that she could not be cocooning and on sick leave at the same time. It submitted that the complainant had availed of her entitlement to full sick pay. The respondent outlined that staff were redeployed to maintain services. There had been no message to the operations manager from the complainant. The respondent outlined that the complainant was correctly on sick leave pay. The HR Manager outlined that she is the respondent’s HR Officer. She outlined that when day services closed, staff were redeployed to residential settings. She said that staff were assessed on an individual basis, including according to their childcare needs and any underlying conditions. The HR Manager said that the complainant went on half pay to the 15th June 2020 and stayed on half pay until the commencement of her maternity leave. The HR Manager said that in August 2020, pregnant colleagues who had a heart condition were able to cocoon. The HR Manager agreed that the complainant had been upset in the phone call. She outlined that there were differing levels of risk, not differing levels of cocooning and the respondent needed the complainant to fit the criteria from a pay point of view. The HR Manager said that she was not aware of the complainant’s hospitalisation. The HR Manager outlined that she and the operations manager arranged to meet the complainant to discuss cocooning and the HSE guidelines. The respondent said that it would assess the named setting and refer the complainant to occupational health. The HR Manager said that she could not provide with the complainant of the details of colleagues who were cocooning. The HR Manager said that there had been three reasons for the complainant’s referral to occupational health: to see if the complainant was fit, what additional measures were required and to identify whether she should be cocooning. This latter question was to address the second paragraph of the Fitness to Work conclusion. The complainant was deemed not able to work anywhere so did not fit the criteria for cocooning. The HR Manager said that all day services closed in March but colleagues maintained support to clients. Employees of the respondent were not laid off and it was for each colleague to work out arrangements with their manager. There was no requirement to refer the complainant to occupational health in March 2020. The HR Manager outlined that the healthcare cocooning policy was provided for all HSE staff. In cross-examination, the HR Manager was asked why the complainant’s circumstances were not considered; the HR Manager replied that everyone who raised concerns was considered on an individual basis. The HR Manager gave her own example where she moved to back-to-back hours to facilitate childcare. The HR Manager was not aware that the complainant had raised an issue. The HR Manager said that she continued to attend the office during this time. It was put to the HR Manager that the complainant had raised her working from home on the 18th March; the HR Manager replied that there is a form to use to amend work hours for childcare reasons and that the complainant had never said that she could return to work. The complainant said that she requested several times that she return to work. Given that the evidence disclosed conflicts of evidence between the complainant and the operations manager, I gave the respondent the opportunity to arrange for the operations manager to give evidence. While the operations manager did not give evidence, during the course of the hearing, it was relayed on the operations manager’s behalf that he had suggested to the complainant in March 2020 that she seek guidance from a GP and not that she should go on sick leave. In closing, the respondent outlined that there were two issues: the sick leave and the cocooning. The complainant had used up her entitlement to sick pay. In post-hearing submissions, the respondent provided the letter of the 18th June 2020. This confirmed that the complainant was going to half pay as of the 16th June 2020 and that she had availed of her entitlement to full sick pay. It refers to the complainant applying for Illness Benefit. The respondent also submitted the occupational health referral form, which the respondent completed prior to arranging for the complainant to attend the telephone consultation with occupational health. This identified three issues to be addressed: is the complainant medically fit for work following pregnancy related absence, is she fit to return to work and does the complainant fall within the HSE cocooning category and therefore should be facilitated in working from home. The respondent submits payslips for 2020. |
Findings and Conclusions:
Scope of the complaint The complainant commenced working for the respondent in 2016 and this employment ended shortly before the adjudication of this complaint in November 2021. For clarity, this adjudication does not address the circumstances around the ending of the complainant’s employment. It primarily addresses the events of 2020. The complainant initially worked in a residential care setting. She moved roles in 2016 following the making against her of an entirely unfounded and false allegation by a named colleague. The complainant raised in evidence how this was unsatisfactorily addressed by the respondent but given that this was a new issue not contained in the complaint form or supporting documentation, I do not make findings regarding how the respondent addressed the unfounded and false allegation. I fully accept the complainant’s evidence that the allegation was entirely unfounded and false and led to her seeking to move to employment services, a role all the evidence suggests the complainant was very successful in and very committed to. In evidence, the complainant raised the manner in which the supervisor role was filled in early 2020. The complainant outlined that she was disadvantaged in the interview process. While I note the complainant’s evidence, there was no suggestion that this process was discriminatory under any grounds in the Employment Equality Act. While the complainant raised this in evidence, this was not part of this complaint as there was no allegation of discrimination. Grounds & burden of proof This is a complaint pursuant to the Employment Equality Act. It relates to family status as the complainant was caring for a one year old child in 2020 and was also pregnant. Pregnancy is more usually addressed under the gender ground, so I have addressed pregnancy under this ground. The fact of the complainant’s pregnancy was disclosed to the respondent and cited in the complaint form. The respondent denied discrimination on all the grounds under the Employment Equality Act. Section 85A sets out the burden of proof in claims of discrimination. It is for the complainant to prove facts of such significance that raise the inference of discrimination. Once the claimant has done this, it falls on the respondent to rebut the inference of discrimination. Conflicts of evidence As set out above, the complainant gave a detailed account of her employment with the respondent, focussing on the events of 2020 although also touching on previous years as well as 2021. This was evidence given under affirmation. I asked the complainant many questions and she was cross-examined by the respondent. The complainant had prepared a detailed timeline of events which set out her position and was reflected in her evidence under affirmation. The complainant’s evidence and the position advanced by the respondent indicated that there were conflicts of evidence between the parties. This included the conversation in March 2020 where the complainant said that she was given no option but to go on sick leave. The complainant’s evidence was that the respondent’s position via the operations manager was that the only alternative for her was to take unpaid parental leave. The complainant gave further evidence of conversations with the operations manager where she sought to work from home in March, April and May 2020. The complainant referred to colleagues who were facilitated in this way and this is corroborated by the text messages of the supervisor. The complainant’s evidence was that the operations manager prevented her from working from home, causing her to go on half pay. The complainant gave evidence that despite being on sick leave, she worked from home and was assigned tasks. This arose as many of the respondent clients continued to work, for example in retail or in nursing home. As an aside, there must have been no greater time to support these service users who continued to attend work during a worldwide pandemic. The complainant’s point is that the employment service was still operational, and she was doing the work. The complainant gave direct evidence of this working from home even though she was on sick leave. All this evidence was not contradicted by the respondent in adducing direct evidence which could be probed. Next in the series of conflicts of evidence is the respondent’s assertion that the complainant did not contact the named setting about her proposed move to that facility. The complainant outlined her efforts to contact the operations manager and Mr Gordon to discuss how this placement would work. As there were so many significant conflicts of evidence between the parties, I suggested during the adjudication hearing that the operations manager may wish to have the opportunity to provide his evidence. He was contacted and relayed that in the March 2020 conversation, he advised the complainant to see a GP rather than to take sick leave. Of course, this was not evidence under oath or affirmation and nor subject to the scrutiny of the adjudication or cross-examination. For the sake of completeness, there is no question of summonsing the operations manager to give evidence. The respondent is entitled to adduce the evidence it wishes to adduce and make the arguments and submissions it wishes in respect of the case. If that is, or is not, sufficient to rebut, say, an inference of discrimination, so be it. The role of the adjudication officer is not to fill in the gaps to a party’s presentation to a case. It is a striking feature of this case that the complainant gave such cogent and persuasive evidence. She gave a clear account of what happened, why it was discrimination as a parent of a child and being pregnant as well as the effects of this discrimination on her. She affirmed to tell the truth and was cross-examined. Because of the impressive cogency of her evidence, I resolve the conflicts of evidence entirely in the complainant’s favour. I find that what the complainant gave in evidence is what happened and is the truth. The complainant gave poignant evidence of her hospitalisation on the 16th May 2020. I accept that the first the respondent was aware of this was during the process at the Workplace Relations Commission. Findings in respect of the claim of discrimination This matter commences with the complainant being on annual leave when the lockdown was introduced. The respondent has not identified why it was necessary to immediately withdraw approval for the already approved annual leave, especially as day services were to close. The respondent has not pointed to any business need for such a withdrawal of approved annual leave. I note that it had the effect of putting the complainant on the spot in deciding what to do next, i.e. whether to take sick leave or unpaid parental leave. As noted, I have accepted the complainant’s account as fact in respect of her conversations with the operations manager in mid-March 2020. He said that she either take sick leave or unpaid parental leave. He was clear that the respondent would not facilitate the complainant to work from home. There was no provision in the complainant’s contract of employment to allow this imposition of unpaid parental leave and nor is it permitted by statute. I accept that the complainant faced this impossible choice and was, therefore, left with the only viable option of going on sick leave to ensure she was paid. I note that lay-off and the Government supports of PUP and TWSS were not available to the complainant. I find that the complainant persistently and articulately raised the possibility of her working from home from March 2020 onwards. This cogent evidence was not rebutted by the respondent. I note that the employment service was busy and her supervisor, who was new to the job, was working from home. I note that the complainant was also working from home despite being on sick leave especially in March and April 2020. I note that the mission of employment services was to facilitate access to the workplace for respondent service users. I note that there was no more challenging time for service users to attend work than in the throes of a pandemic. There was plenty of work for the complainant to do. I note that the complainant and her supervisor referred to many colleagues who were allowed to work from home. I can see no reason why the complainant could not have also been formally allowed work from home and be paid for doing so, given that she was already working from home, there was work to do and many others were so facilitated. The complainant has, therefore, established facts of such significance that raise the inference of discrimination. What is striking is the absence of any documentation setting out the respondent’s thinking about why the complainant could not work from home. It referred to an evaluation of each employee’s circumstances, for example any underlying conditions or childcare responsibilities. There is no document setting out how the complainant’s situation was assessed. I note that this was a challenging time for employers and employees alike. It is striking, however, that no such justification was ever reduced to writing by the respondent or the operations manager in respect of the complainant. In the absence of any such document and any direct evidence as to this process, I am unable to fathom how the complainant’s situation was assessed, as compared to those colleagues who did not, for example, have childcare responsibilities and who were allowed to work from home. The complainant was not facilitated with working from home when those colleagues without childcare responsibilities or who were not pregnant were facilitated. This is evidence not only of less favourable treatment on grounds of family status and gender, but that it was precisely because she had a one year old child at home and because she was pregnant that the complainant was denied the facility of working from home, a facility afforded to others. The respondent has, therefore, not rebutted the inference of discrimination. All this means is that from March 2020 the complainant should have continued to work (and from home until August 2020) and continued to be on full pay until the 14th August 2020. Until the 14th August 2020, the reason behind the certification of sickness was the operations manager’s statements that she could not work from home and that the only initial alternative was unpaid parental leave or later to work in a named setting. I note that in August 2020 the respondent mooted that the complainant transfer to a named facility. The complainant raised reasonable concerns about the appropriateness of this transfer, given the physical layout of the setting, the fact that service users would not be wearing masks or social distancing and her advanced stage of pregnancy. I have found that the complainant sought to contact the manager of the centre, but he was not available. I note that the proposed meeting regarding the transfer was with the operations manager and not with Mr Gordon. This, of course, differed to what happened when the complainant moved from residential services to employment services in 2016, when she touched base with the incoming manager and not the outgoing manager. I note the differing accounts of the phone call between the complainant and the HR Manager, which the complainant described as a barrage. Even noting the differing accounts, it is striking that there is no documentation regarding the respondent’s evolving assessment of the complainant’s situation and her requests for documentation was never answered. Prior to the certification of the 14th August 2020, the complainant could have worked from home, and it was never clear why this was not facilitated. The 14th August 2020 was the date the complainant was certified by her maternity hospital as unfit for work, including from home. This unfitness was confirmed by the occupational health assessment of the 9th September 2020. The complainant’s experiences between March and August 2020 may have contributed to her ill-health in the latter stages of her pregnancy. However, even if this was not the case, the complainant should not have been on sick leave prior to August 2020, and therefore should have been able to avail of full sick pay for three months, i.e. covering her from the 14th August 2020 to the commencement of her maternity leave in October 2020. This entitlement had been exhausted by the discriminatory actions of the respondent in forcing the complainant to take sick leave in March 2020 as the only alternative available to her was unpaid parental leave. The effects of discrimination In assessing the effects of discrimination, I note that the complainant was on half pay from May to October 2020. I have found that she should have been allowed to work from home and be on full pay from March to August 2020, after which per the medical advice she could no longer work even from home. Had there been no discrimination, the three months of full maternity sick pay would have commenced in August 2020. The complainant has a shortfall of 50% of her pay for period of six months, an amount of around €21,000. As adduced in the evidence, the effects of discrimination go far beyond any amount of financial loss. I note that the complainant was particularly vulnerable at this time, as someone who was pregnant and with a young child during a pandemic. I note her valiant efforts to explain how she could work from home and to highlight the work she was actually doing from home. I note that she cited the example of colleagues who were so facilitated when no explanation as to why she was not facilitated. As per Von Colson principles, redress must be proportionate, dissuasive and effective. Even taking what the respondent acknowledged it knew in 2020 (i.e. not the hospitalisation), I award the complainant redress of €45,000 for the effects of discrimination. The complainant was fully committed to the mission and to the clients of the respondent, but the respondent, in the midst of a pandemic, knowing of her pregnancy and childcare needs, denied her access to work and full pay for no lawful reason when the same facility was afforded to others. Per the Taxes Consolidation Act, this is an award of redress for the effects of discrimination and is not subject to taxation. I note that the respondent letter of the 27th October 2021 stated ‘I am aware that there is an outstanding WRC action that has yet to be heard. Following the outcome of this adjudication, should the outcome result in a finding for the service, the monies owed that are part of this WRC action will need to be recouped by the service at that time.’ I am not aware of what costs a claimant could have to pay to an employer pursuant to an Employment Equality claim, but to be clear, the complainant owes nothing to the respondent and the opposite, is entitled to the award of redress provided in this decision. |
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.
CA-00039483-001 In accordance with my powers under section 82 of the Employment Equality Act, I hereby order the respondent to pay to the complainant €45,000 by way of compensation for the breach of the Act. The award is redress for the infringement of the complainant’s statutory rights and therefore not subject to the PAYE/PRSI/USC code. |
Dated: 18th May 2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Employment Equality Act / family status / gender / working from home |