Burke (Represented by Ms. Honan, B.L. instructed by Augustus Cullen & Son, Solicitors) V The Ashford Clinic (Represented by Haughton McCarroll, Solicitors)
1. DISPUTE
1.1 This dispute concerns a claim by Ms. Izabela Burke who was employed by The Ashford Clinic that she was discriminated against in terms of Sections 6(1), 6(2)(a), 6(2)(c), 6(2)(f) and 6(2)(h) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act in terms of the treatment she received when she was employed by the respondent. The issue of whether the respondent victimised the complainant in terms of Section 74(2) of the Act will also be addressed.
2. BACKGROUND
2.1 The complainant alleges that she was discriminated against by the respondent by being treated less favourably on the grounds of gender, family status, age and race in terms of her grading, pay, childminding arrangements and promotion. The complainant also alleges that she was victimised in terms of pay and also when the respondent failed to sign a Social Welfare form. The respondent denies the allegations.
2.2 Consequently the complainant referred a complaint to the Director of Equality Investigations on 5th March, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 9th August, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received and a joint hearing took place on 20th November, 2002. It was at this hearing that the complainant confirmed that she was also making a claim for equal pay on the grounds of race. A separate investigation was undertaken in the pay claim and Decision DEC-E-2003/019 refers. In relation to the treatment claim additional information was received from the respondent on 9th December, 2002.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant is a polish national married to an Irish man and is living in Gorey, Co. Wexford with her husband and 10 year old son. She started working for Dr. Orla McAndrew with the respondent organisation in Ashford, Co. Wicklow around November, 1999 on a job sharing basis. Her job sharing partner was Ms. Goodbody who became pregnant and gave notice of maternity leave. Her baby was due in February, 2002. According to the complainant Ms. Goodbody also indicated that she intended to leave the employment after her maternity leave to look after her baby and her other child.
3.2 The complainant states that she was informed on 5th December, 2001 by her employer that another female had been found who could replace her and Ms. Goodbody. According to the complainant she was told that this female could do accounts and also that she would be working full-time, she did not have the troubles of being child-bearing and rearing age and also she was local. The complainant notes that she was not offered the job on a full-time or part-time basis and was criticised for not being contactable during her holidays or to do her own holiday cover if necessary. It is the complainant's contention that Dr. McAndrew was uncomfortable with her son coming home alone after school when the complainant was at work. The complainant says that she told Dr. McAndrew of this about Monday, 17th December, 2001 and her employment ended about 21st December, 2001. According to the complainant she received a very positive reference from Dr. McAndrew dated 5th December, 2001.
3.3 It is the complainant's contention that the problems between herself and Dr. McAndrew started about March, 2000 when the complainant said that she would no longer be able to look after Ms. Goodbody's baby. They had been looking after each other's child when the other was working. The complainant says that this was a much easier task for Ms. Goodbody as her ten year only son took very little looking after as opposed to Ms. Goodbody's young baby. According to the complainant her work time was changed from 2 days in one week and 3 days on alternate weeks to a "week on, week off". The complainant says that this was to suit Ms. Goodbody and her babysitter. While this was inconvenient for the complainant she went along with it. The complainant notes that at this time Ms. Goodbody was made Office Manager and was paid more that her (the complainant) even though they did exactly the same work. The complainant argues that this was victimisation.
3.4 The complainant states that she feels that she was discriminated against for the following reasons:
(a) Family Status i.e. Dr. McAndrew's concerns about the complainant's 10 year old son. The complainant's neighbour looked after her son after school when the complainant was at work.
(b) Age, gender and family status by reason of Ms. Goodbody's pregnancy and maternity leave directly leading to the complainant's dismissal. Her replacement is beyond the age of childbearing and rearing hence no maternity or childminding concerns for the employer.
(c) Race and nationality. The complainant is not a "local", she is Polish. Her accent is strong. Her replacement is a local and worked in the neighbouring Ashford House. The complainant believes that her employer chose this person over her because clients would regard her as one of their own.
(d) Family status is also a ground as part of the reason for being fired was because she was not contactable when on a week's holidays with her family. The complainant states that other employees (including Ms. Goodbody) did not have this requirement.
(e) Again family status discrimination arises because Dr. McAndrew objected to the fact of the complainant commuting from Gorey which is about a one hour drive.
(f) There was discrimination in relation to pay as well since the complainant was paid £128.00 per week as against £200.00 per week for Ms. Goodbody for undertaking the same work. Furthermore the complainant did not receive any holiday money. The complainant considers that this was victimisation for her not wishing to look after Ms. Goodbody's child any more i.e. victimisation on the basis of discrimination over family status choices, including how the complainant would like her child to be minded and whether or not she chose to mind another employee's child during her time off. The complainant notes that there was no payment whatsoever for the minding of the children.
(g) There was also victimisation by reason that when the complainant's husband asked Dr. McAndrew to sign the complainant's application for Social Welfare, she refused to do so at the time and took the form. Her delay in signing the form caused a delay for the complainant in getting payment.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent notes that the complainant was employed by Dr. McAndrew on a part-time basis working 20 hours per week and states that she was not job-sharing with Ms. Goodbody. According to the respondent Ms. Goodbody was employed as the Practice Manager and also worked 20 hours per week being employed part-time. The respondent states that Ms. Goodbody did not at any stage indicate her intention to leave the employment of Dr. McAndrew and it is her intention to return to the respondent's employment. The respondent submits that Dr. McAndrew employed Ms. Vaughan to work during Ms. Goodbody's maternity leave. According to the respondent Ms. Vaughan was qualified in Accounts and also had the managerial skills necessary to carry out the work of Ms. Goodbody during her maternity leave. The respondent notes that Ms. Vaughan is Australian and not local.
4.2 The respondent contends that Dr. McAndrew was not a party to any arrangement between the complainant and Ms. Goodbody regarding child minding as alleged by the complainant.
4.3 The respondent makes the following response to specific allegations by the complainant:
(i) The complainant's son was 8 years old at the time and he would ring Dr. McAndrew's surgery on numerous occasions. Dr. McAndrew spoke to the complainant's son on many of these occasions and he was upset and crying because he was left at home on his own. The respondent says that it was not uncommon for the complainant to leave the surgery without notice to return to her home in Gorey to her son. On occasions the complainant would bring her young son to work as she had no childminding facility. The respondent states that Dr. McAndrew spoke to the complainant about this and advised her that she should not leave her son at home on his own.
(ii) The respondent submits that it is incorrect to state that the maternity leave of Ms. Goodbody was in any way connected to the complainant ceasing her employment. When Ms. Goodbody informed Dr. McAndrew that she would be going on maternity leave, Dr. McAndrew employed Ms. Vaughan as she had the qualification and experience necessary to carry out the work previously undertaken by Ms. Goodbody. The respondent notes that three of the four people employed by Dr. McAndrew are of child bearing and rearing age.
(iii) The respondent notes that Ms. Vaughan is an Australian and is not a local as described by the complainant. According to the respondent Dr. McAndrew resents the allegation that she is prejudiced and in any way discriminated against the complainant because of her nationality and race. The respondent submits that Dr. McAndrew herself is an Australian citizen having spent eighteen years in Australia. Her previous childminder of one year was Polish and her current childminder is Philippine.
(iv) The respondent denies that Dr. McAndrew ever contacted or attempted to contact the complainant outside surgery hours.
(v) According to the respondent Dr. McAndrew had no objection to the fact that the complainant was commuting from Gorey and she did not pass any comment to her about it. The respondent says that the complainant did say to Dr. McAndrew that she was intending to change jobs so as to work closer to home.
(vi) The respondent states that it is not correct to say that there was discrimination between the complainant and Ms. Goodbody in relation to pay. Ms. Goodbody, in addition to doing secretarial work, was also responsible for the Administration of the office, the Bookkeeping and Accounts. By contrast the complainant was employed as a Receptionist in the making of appointments. The respondent states that this accounts for the difference in pay between the two employees. According to the respondent the complainant was paid while she was on holidays. The respondent again states that the arrangement between the complainant and Ms. Goodbody regarding childminding was not a matter in which Dr. McAndrew took an active role.
(vii) The respondent accepts that the complainant's husband did call to see Dr. McAndrew asking her to sign an Application form which was to be signed by the complainant's last employer. According to the respondent Dr. McAndrew indicated to the complainant's husband that she could not sign the form as she was not the complainant's last employer.
4.4 The respondent states that Dr. McAndrew denies that she in any way discriminated against the complainant during the course of her employment. The complainant informed Dr. McAndrew around December, 2001 that she had been offered a job closer to home in Arklow and that the job offer was on a full-time basis in an office. The respondent says that the complainant intended to take the job as she would have less travel and she wanted to work full-time. According to the respondent the complainant worked her month's notice and left on 21st December, 2001 as she indicated to Dr. McAndrew that her new employer wanted her to commence employment on the first week of January. The respondent notes that at no stage did the complainant raise any of the issues contained in her submission with Dr. McAndrew and no complaints were made by the complainant.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for consideration in this claim is whether or not the respondent discriminated against the complainant on the grounds of gender, family status, age and race in accordance with the provisions of Section 6 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act. The issue of whether the respondent subjected the complainant to victimisation in terms of Section 74(2) will also be addressed. In making my decision in this claim I have taken into account all of the submissions, both written and oral, made to me by the parties.
5.2 The complainant alleges that she was discriminated against by the respondent for the following reasons:
(a) On the grounds of gender, age and family status her colleague's pregnancy and maternity leave led directly to her (the complainant's) dismissal as her colleague's replacement was beyond child-bearing age hence the respondent would have no maternity or childminding concerns.
(b) On the grounds of family status as the respondent had expressed concerns about her childminding arrangements. Furthermore the respondent required her to be contactable while on leave from work and this was not a requirement for other employees. The respondent also objected to the fact that the complainant had a one hour drive to and from work.
(c) On the grounds of race as the complainant being Polish was not 'local' and the respondent chose Ms. Goodbody's replacement (Ms. Vaughan) because she was 'local' and would be regarded by clients as one of their own.
(d) Victimisation resulting from the respondent's failure to sign an application form for Social Welfare for the complainant. The complainant also alleged victimisation in relation to pay. The details of the pay claim is dealt with in Decision DEC-E2003-019.
5.3 Section 6(1) of the Employment Equality Act, 1998 states that:
"discrimination shall be taken to occur where, on any of the grounds ...... one person is treated less favourably than another is, has been or would be treated".
Section 6(2) of the 1998 Act sets out the various discriminatory grounds and those relevant to this claim are as follows:
"As between any 2 persons the discriminatory grounds ..... are (a) that one is a woman and the other is a man ... the gender ground;
(b) that one has family status and the other does not ... the family status ground;
(c) that they are of different ages ... the age ground;
(d) that they are of different race, colour, nationality or ethnic or national origins ... the ground of race."
5.4 The allegation by the complainant that, on the grounds of gender, age and family status her colleague's pregnancy and maternity leave led directly to her dismissal is outside my jurisdication for investigation. Under Section 77(2) of the Employment Equality Act, 1998 a claim for redress for dismissal may be brought to the Labour Court and not to the Director.
5.5 In this claim the complainant alleges that she was discriminated against on the grounds of her gender. In making such an allegation the complainant must show that she was treated less favourably than a man. At the hearing of this claim the complainant stated that the respondent's concern with her childcare arrangements influenced decisions on her employment. The complainant contended that it is less likely that the respondent would subject a man to such scrutiny in relation to childminding arrangements. In this regard the complainant cited the Equality Officer Recommendation and the Labour Court Determination in the case of Corrib Airport Limited and A Worker2.
5.6 It is alleged that the respondent expressed concerns about the complainant's childminding arrangements. The complainant had a childminding arrangement with her colleague (Ms. Goodbody). Both the complainant and Ms. Goodbody worked part-time. When one was off the other was at work. When the complainant was off work she minded Ms. Goodbody's child and vice versa. The respondent organisation is a small medical practice and I am satisfied that the respondent was aware of this childminding arrangement between the two staff members. I am also satisfied that this was a personal arrangement and not one which was influenced by the respondent.
5.7 Around March, 2000 the complainant indicated to Ms. Goodbody that she was not prepared to mind her child anymore. Ms. Goodbody had to organise an alternative arrangement and as a result sought to change the working time arrangement from 'three days one week and two days the next week' to 'a week on and a week off' to facilitate the new arrangement. According to the complainant this change in working arrangement was inconvenient for her but she accepted it. The complainant also states that, at this time, Ms. Goodbody was made the Office Manager and was paid more than the complainant even though they both performed the same jobs and this, she contends, was victimisation. It is the respondent's contention that Ms. Goodbody had been employed as a Practice Manager and as Practice Manager she could decide on the working time arrangements. The respondent was aware of the change in working time arrangements and was agreable to it. According to the respondent the complainant did not object to the change in the working time arrangements at that time, but there was some tension between the two staff members as a result of the change in childminding and working time arrangements for a couple of weeks.
5.8 There was a conflict between the parties about Ms. Goodbody's job title and role in the organisation. The complainant contends that they both performed the same work. This has been the subject of a separate investigation in relation to equal pay and the findings of that investigation are set out in Decision Dec-E-2003/019. According to the respondent the complainant was employed as a Receptionist. She was recommended to the respondent by Ms. Goodbody and an informal interview took place between the respondent and the complainant in Ms. Goodbody's house and Ms. Goodbody was also present. According to the respondent it was explained to the complainant that Ms. Goodbody was employed as a Practice Manager but the complainant denies this. I note that in an article on the opening of the respondent's practice in a local newspaper published around November, 1999 Ms. Goodbody is described as the Practice Manager. Both the complainant and Ms. Goodbody commenced employment in the respondent organisation in late 1999 and at that time they were both in receipt of the same rate of pay. There was a conflict between the parties as to when Ms. Goodbody received pay increases. According to the complainant Ms. Goodbody received a pay increase in March, 2000. Ms. Goodbody, herself accepted that she had received a 10% increase in pay some 4 to 5 months after the commencement of her employment and a further smaller increase some time later. I received statements of salary for the complainant and Ms. Goodbody from the respondent's accountants and am satisfied that Ms. Goodbody receieved two salary increases between November, 1999 and December, 2001. According to Ms. Goodbody she had agreed to commence employment at the same pay rate as the complainant to enable the business to get on its feet and that, once this had happened, she would obtain a salary increase to reflect her position. From the evidence I am satisfied that Ms. Goodbody was employed as a Practice Manager. To have been paid the same as the Receptionist was unusual but not in any way discriminatory on any of the grounds under the Employment Equality Act, 1998.
5.9 The respondent accepts that she expressed concern to the complainant about her child being at home alone. According to the respondent the complainant's child had contacted the surgery on a number of occasions and spoken to her. He was upset at being at home alone and was looking for his mother. The complainant would, on occasion, leave work to go home to her child. According to the respondent it would have been neglectful of her as a mother herself and a doctor not to have expressed concern in the circumstances. The complainant denied that her child rang the surgery and said that he would ring her. She also stated that, on one occasion, she had to leave work to go home where he (her child) had a nose bleed and on another occasion she had to bring him to work because of a problem with childminding. At the hearing of this claim the complainant stated that she had brought her child to work on a few occasions. There is a clear conflict between the complainant and the respondent as to the extent of the phone calls from the complainant's child and the extent to which the complainant had to leave work to go to her child or indeed take her child to work. Having said that I find it reasonable for the respondent who is a medical practitioner to have expressed concerns about the complainant's childminding arrangements. There is no evidence that the respondent would not have expressed concern to a male employee in similar circumstances. The cases cited by the complainant (as at paragraph 5.5 above) can be distinguished from this claim inasmuch as the complainant in those cases had established a prima facie claim of discrimination and the respondent had failed to discharge its burden of proof. However in this case I am satisfied that the complainant has failed to establish a prima facie case of discrimination on the grounds of gender.
5.10 The complainant has also alleged that she was treated less favourably on the grounds of family status. The Employment Equality Act, 1998 provides that discrimination on this ground occurs where "one person is treated less favourably than another is, has been or would be treated where one person has a family status and the other does not". The Act defines family status as meaning "responsibility
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis ...".
In terms of family status the complainant and her colleague Ms. Goodbody both had a family status hence the respondent could not have discriminated against them on the family status ground. When Ms. Goodbody informed the respondent of her pregnancy the respondent decided to recruit a replacement for the duration of the maternity leave. The complainant was critical of the respondent for not having considered her for the position but the respondent stated that she required a replacement with managerial and book-keeping skills to fulfill the role of Practice Manager, the position being left vacant by Ms. Goodbody. The person recruited to the position (Ms. Vaughan) did not have a family status within the meaning of the Act as all her children where over the age of eighteen. I cannot find that the complainant was treated less favourably than Ms. Vaughan on the grounds of family status as Ms. Vaughan possessed the necessary qualifications for the position of Practice Manager and the complainant did not have these qualifications.
5.11 The complainant has also alleged that she was treated less favourably on the grounds of family status when she was required to be contactable while on family holidays and by the respondent's objection to her one hour drive to and from work. The respondent denied that the complainant or indeed any staff were required to be contactable when on leave from the workplace. The respondent also denied that she objected to the complainant travelling one hour to and from work. There is a clear conflict of evidence in this regard and the complainant has failed to produce any evidence to support her contention. Therefore I find that the complainant has failed to establish a prima facie claim of discrimination on the grounds of family status.
5.12 In terms of the allegation by the complainant that she was treated less favourably than Ms. Vaughan (the person recruited to replace Ms. Goodbody, the Practice Manager) on the grounds of race the respondent noted that Ms. Vaughan was not a 'local' given that she was Australian and lived most of her life in Australia. The respondent denied discriminating against anyone on the grounds of race and noted that she herself is an Australian citizen having spent 18 years there and she had employed foreign childminders over the years. It was the complainant's contention that an inference of discrimination had been raised from the facts and hence there was an onus on the respondent to rebuff the allegations. In making this argument the complainant referred to the case of Wallace v South Eastern Education and Library Board3 in which it was held that the burden of proof is based simply on the balance of probabilities based on the evidence presented by each of the parties and to which the other has had an opportunity to respond. The complainant also cited the case of King v Great Britian-China Centre4 in which Neill LJ put forward five guiding principles aimed at helping tribunals to determine whether unlawful discrimination had occurred as follows:
- it is for the applicants to make out a case of discrimination. If they are unable to prove their case of the balance of probabilities, they will fail;
- it is unusual to find direct evidence of discrimination as few employers are prepared to admit it even to themselves, and in some cases the discrimination will not be ill-intentioned but be based merely on an assumption that a person would not have 'fitted in';
- the outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts;
- although there will be some cases where non-selection for a job or promotion is clearly not on grounds of race, a finding of discrimination and a finding of a difference in race will often point to the possibility of unlawful discrimination. If no explanation or an inadequate or
unsatisfactory explanation is received from the employer then it is legitimate to draw the inference that the discrimination was on racial grounds. This is not a matter of law but of 'common sense';
- it is unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of the evidence a finding should be made as to the primary facts. A conclusion should be reached on the balance of probabilities, bearing in mind both the difficulties people face when complaining of unlawful discrimination and the fact that it is for the
complainant to prove his/her case.
I note that the complainant and the person appointed to the position of Practice Manager (Ms. Vaughan) were of different nationalities. However I am satisfied that the respondent appointed Ms. Vaughan because of her experience and qualifications in book-keeping. The complainant has failed to establish a prima facie claim of discrimination on the grounds of race.
5.13 The complainant alleges that she was victimised as a result of the respondent's failure to sign an application form for Social Welfare. According to the complainant she has been out of employment since working in the respondent organisation i.e. December, 2001. The respondent refused to sign the Social Welfare form when asked and this, she alleges, was victimisation. I note that there is a conflict of evidence between the parties on this issue. It is the complainant's contention that she was dismissed by the respondent because a full-time replacement had been appointed when Ms. Goodbody left on maternity leave and she was not then required on a part-time basis. According to the respondent the complainant handed in her notice because she had found a job closer to home and she requested a reference which she was given. The complainant accepted that she informed the respondent that she had found another job because she stated that she found this the easiest thing to say in the circumstances. I find that the respondent, by not signing the Social Welfare form, did not victimise against the complainant because, as far as the respondent was aware from what the complainant herself had said, she (the complainant) was moving to another job hence it would not have been appropriate for the respondent to sign the form.
6. DECISION
6.1 In view of the foregoing I find that the Ashford Clinic did not discriminate against Ms. Izabella Burke in terms of Section 6 of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act. I also find that the Ashford Clinic did not subject the complainant to victimisation within the meaning of victimisation as set out in Section 74(2) of the 1998 Act.
___________________
Gerardine Coyle
Equality Officer
14th May, 2003
2 Equality Officer Recommendation EE 14/1992 and Labour Court Determination DEE938
3 1980 IRLR 193
4 1992 ICR 516 CA