Waldron V North Western Health Board (Represented by VP McMullin Solicitors)
1. DISPUTE
1.1 This dispute concerns a claim by Ms. Christine Waldron who is employed by the North Western Health Board that she was discriminated against and harassed in terms of Sections 6(1), 6(2)(b) and 6(2)(c) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when she was treated less favourably to others in respect of her working conditions.
2. BACKGROUND
2.1 The complainant alleges that the respondent put her under considerable pressure to resign in October, 1999 and when she refused she was subjected to discrimination and harassment on the grounds of her marital status and her family status. The complainant is also alleging that, from October 1999, the respondent discriminated against her when her requests, for travel and subsistence expenses to an office other than her permanent office base, were refused. The complainant further contends that she was subjected to discriminatory treatment and harassment when she was given a formal written warning on 11th December, 2001 for not having adhered to an instruction to travel with clients to and from the Office Christmas Party on 7th December, 2001. It is the complainant's contention that she was precluded from adhering to the instruction due to her family commitments. The respondent denies all the allegations.
2.2 Consequently the complainant lodged a formal complaint with the Director of Equality Investigations on 10th June, 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 23rd July, 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 14th March, 2003. Additional information was received from both parties with the final correspondence received on 16th May, 2003.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 According to the complainant she is an employee of the respondent organisation in the position of Job Coach/Instructor/Supervisor - Level 2. The complainant says that she was originally employed by Schizophrenia Ireland at Worklink which was partly funded by the respondent up to October, 1999. This service was then taken over in full by the respondent. The complainant states that during her employment with Schizophrenia Ireland her immediate supervisor was Mr. A who was a permanent employee of the respondent organisation and who was seconded to Schizophrenia Ireland.
3.2 According to the complainant there was a problem with financial funding and direction/management of the Worklink programme in 1999 by both Schizophrenia Ireland and the respondent organisation and this was exacerbated by personal differences between Mr. A and a Ms. A who was in a managerial position in Schizophrenia Ireland at the time. The complainant notes that there was uncertainty and upheaval among staff as a result of these difficulties and a number of staff meetings took place to discuss the future of the operation. It is the complainant's submission that the staff were urged by Mr. A to resign en mass with immediate effect. This action, he assured staff, would result in the collapse of the programme, the take-over of the programme by the respondent organisation and the re-employment of staff to the respondent organisation in the same capacity as permanent employees. According to the complainant she refused to resign her position without any guarantees by Mr. A that she would be re-employed by the respondent organisation. It is the complainant's contention that she could not afford to be without a salary due to her marital and family status as she had five young children to support and a mortgage and household expenses to pay.
3.3 The complainant alleges that she was put under considerable personal pressure to resign by Mr. A. She states that he used his supervisory position over her and he was both domineering and intimidating. When the complainant refused to resign she says that the harassment and discrimination against her commenced as Mr. A regarded it as a matter of loyalty towards him. According to the complainant Mr. A stated that if she did not back him that this would probably effect the way he would work with her ever again. The complainant regards this statement as discriminatory on the grounds of her marital and family status as Mr. A sought to undermine her on both these grounds.
3.4 The complainant states that from October, 1999 she has been subjected to discrimination by Mr. A in relation to her entitlement and access to travel and subsistence expenses. According to the complainant Mr. A disallowed her request for travel expenses when she was requested by him to travel from her home in Buncrana to the Moville Office which was not her permanent office base. The complainant states that Mr. A applied different criteria to both himself and other work colleagues given that he claimed travel expenses for the same journey from Letterkenny to Moville. It is the complainant's contention that copies of Mr. A's travel expense forms will support this and she says that it is evident from copies of her travel claim forms which she submitted for certification that Mr. A deleted certain travel expenses involving travel from her family home in Buncrana to venues other than the Letterkenny office. The complainant states that she considers this discriminatory on the grounds of her family and marital status in that Mr. A informed her that if she lived in Letterkenny she would be entitled to claim travel expenses from Letterkenny to Moville.
3.5 According to the complainant Mr. A berated her on 7th December, 2001 in relation to her refusal to travel on the minibus from Letterkenny to the office Christmas party with a group of clients. The complainant states that she informed Mr. A that if she travelled by bus to the function she would have to return to Letterkenny by bus at 3.00a.m. and then drive back home to Buncrana arriving home at 4.00a.m. It is the complainant's submission that this was totally unacceptable to her as she had a young family and only had limited childminding arrangements for that night. Furthermore she was not happy to have to travel home alone at 3.00a.m. from Letterkenny to Buncrana.
3.6 The complainant returned to the Letterkenny office on Tuesday, 11th December, 2001 following the incident on 7th December, 2001 as set out in paragraph 3.5 above. There was a warning letter on her desk from Mr. A in relation to her refusal to comply with his request that she travel on the bus to the office party. At a meeting with Mr. A at 10.00a.m. that morning (11/12/02) the complainant states that Mr. A informed her that he had issued her with a reasonable instruction and her refusal to comply with that instruction had resulted in an attempt by her to "undermine his authority to run the show". According to the complainant Mr. A stated that this warranted a formal warning. The complainant contends that the above actions by Mr. A were an attempt to totally undermine her integrity and to humiliate her. He failed to take account of her marital and family status by issuing her with instructions with which he knew she could not comply.
3.7 The complainant states that she is fully satisfied that she is being treated differently from other work colleagues in relation to opportunities, entitlements and fair treatment by Mr. A. The complainant contends that travel expenses comes under the definition of remuneration given under Section 2 of the Employment Equality Act, 1998.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 According to the respondent the complainant was originally employed by Schizophrenia Ireland in Dublin as a trainer/job coach on their Worklink programme in Donegal. The programme was taken over by the respondent organisation in or around October, 1999 at which stage the complainant became an employee of the respondent. The complainant commenced employment with Schizophrenia Ireland in June, 1998 and her immediate supervisor was Mr. A. According to the respondent Mr. A is a full-time employee with the respondent organisation and during the time the Worklink programme was operated by Schizophrenia Ireland he was seconded to that organisation.
4.2 The respondent states that on 13th December, 2001 the complainant wrote a formal letter of complaint to Mr. A alleging harassment by him over a period which she alleged amounted to bullying. Mr. A passed the correspondence to his superior officer. The respondent says that there was further correspondence over the next few months including a detailed further letter of complaint to the respondent's Director of Human Resources and these complaints were processed through the respondent's grievance procedures. During this process the complainant was represented by IMPACT.
4.3 On 20th February, 2002 the respondent's Deputy Director of Human Resources sought deferral of the complainant's request for investigation under the respondent's separate Anti-Bullying policy until the Grievance Procedure had concluded. Following considerable further correspondence Mr. A's superior officer, as part of the grievance procedure, held separate meetings with the complainant accompanied by her Union representative and Mr. A accompanied by his Union representative between March and May, 2002. According to the respondent the purpose of the grievance procedure is to seek resolution of the difficulties and considerable progress was made in that regard. In a letter to the complainant dated 31st May, 2002 from Mr. A's superior officer the hope was expressed that a resolution of the matter could be found. The complainant acknowledged that letter on 7th June, 2002 stating that she looked forward to the matter being resolved in the near future. The respondent notes that on 10th June, 2002 the complainant referred a complaint to the Director of Equality Investigations about essentially the same matters. Then on 25th June, 2002 Mr. A's superior officer wrote to the complainant's Union representative confirming a proposed 4 point resolution of the matter which had emerged from discussions. According to the respondent contacts/correspondence is still ongoing in relation to the 4 point resolution of the matter.
4.4 The respondent submits that the complaint comprises allegations in the categories of bullying, discrimination (other than that covered by the discriminatory grounds set out in Section 6(2) of the Employment Equality Act, 1998) and breach of contract. According to the respondent the above matters are the subject of the formal complaints processed so far under its grievance procedure. In relation to the allegations made to the Director of Equality Investigations that she (the complainant) has been discriminated against on the grounds of marital and family status the respondent contends that in support of such a claim the complainant needs to establish that a prima facie case exists, that she is covered by the relevant discriminatory ground, that she has been subjected to specific treatment and that this treatment is less favourable than the treatment of someone who is not covered by the relevant discriminatory ground. The respondent, in its submission, submits that without going into the merits of the claim the allegations fall outside the scope of Section 77 of the Employment Equality Act, 1998 and clearly fall within the scope of the categories as set out above.
4.5 In relation to the complainant's allegation at paragraph 3.3 above the respondent submits that even if what is alleged did happen it has nothing whatsoever to do with the complainant's family or marital status. The respondent notes that there were other staff members at the meeting the majority of whom were married and had children. The respondent also notes that the meeting in question occurred before the commencement date of the Employment Equality Act, 1998 (i.e. 18th October, 1999) and it argues that a claim for redress cannot be made for this reason in respect of the alleged incident.
4.6 In relation to travel and subsistence expenses the respondent states that this issue has nothing to do with the complainant's family and marital status as she had the same entitlement to travel and subsistence expenses as her colleagues. The respondent notes that a number of its employees having the same marital and/or family status have to travel to their normal base of work each day and their entitlements are no different. According to the respondent during a large part of the period in question a Ms. B was the certifying officer in respect of the complainant's expenses as opposed to Mr. A. The respondent notes that the complainant, in her submission, has failed to detail the specific deductions that she claims should not have been made.
4.7 The respondent denies that the alleged incident concerning the complainant travelling by mini bus to the Christmas Party has anything to do with the complainant's marital and family status. It is the respondent's contention that the complainant has failed to make out a prima facie case that she has been treated less favourably than another person is, has or would be treated as a result of her family and/or marital status. According to the respondent the complainant and a colleague were responsible for social club events. On the night in question the complainant was to be responsible for clients travelling from Letterkenny to the venue (Quigley's Point) and her colleague was responsible for clients travelling from Moville to the venue. Recognising that the complainant would have a late night on 7th December, 2001 she was not required to start work until 4.00p.m. The complainant was required to start work normally at 9.00a.m. and her colleague started work at that time that day. According to the respondent the complainant was informed in writing and by telephone that she would be required to travel on the bus that evening and Mr. A felt that it was important that a member of staff with responsibility for clients travel on the bus. Given that the complainant was responsible for facilitating social events this was deemed by Mr. A to be a reasonable request. The respondent states that Mr. A believed that the complainant, in refusing to comply with his request, undermined his authority and so he issued her with a verbal warning.
4.8 The respondent states that it is difficult to respond to the generalised allegations by the complainant in her submission and set out in paragraph 3.7 above. However it says that unless the allegations are supported by evidence of discrimination on the family or marital status grounds they fall outside the scope of the Act.
4.9 The respondent contends that the alleged incidents by the complainant have not been referred to the Director of Equality Investigations within the statutory time limit as set out in Section 77(5) of the Employment Equality Act, 1998. The respondent refers to the strict time limit imposed by Section 77(5) of the Employment Equality Act, 1998 and states that the allegation relating to 10th and 11th December, 2001 is the only one within the six months time limit period. However what occurred on 10th/11th December, 2001 was the issuing of a verbal warning, but the incident which gave rise to the verbal warning occurred the previous Friday night which the respondent contends is outside the six months time limit.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the respondent discriminated against or harassed the complainant in terms of her marital status and her family status. The preliminary issue of whether the claim was referred inside the six months time limit as set out in Section 77(5) of the Employment Equality Act, 1998 must firstly 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 In this claim the complainant makes the following three allegations on the grounds of marital and family status:
(1) She was put under considerable pressure to resign around October, 1999 and her refusal to do so resulted in the comment by Mr. A that this would affect the way they worked together in the future.
(2) From October, 1999 she was refused travel and subsistence expenses when she had to travel to an office which was not her permanent office base.
(3) She was issued with a written warning dated 10th December, 2001 for refusing to travel by bus with clients from Letterkenny to the Office Christmas party in Quigley's Point.
The respondent, both in its submission and at the hearing of this claim, has argued that this claim falls outside the six months time limit imposed by Section 77(5) of the Employment Equality Act, 1998. Section 77(5) of the Act states:
".... a claim for redress in respect of discrimination or victimisation may not be referred .... after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".
5.3 The respondent has argued that the final incidence is outside the strict time limits set by the 1998 Act as the alleged discrimination occurred on 7th December, 2001 (the date of the request by Mr. A to the complainant to travel on the bus to the Christmas party) and the referral of this claim was dated 10th June, 2002 and no extension of time request was made by the complainant. I disagree with the respondent on this point. I find that the date of discrimination in respect of the final incident was 11th December, 2001 the date that the complainant received a verbal warning from Mr. A. The complainant herself placed significant emphasis on the written note from Mr. A dated 10th December, 2001 and described it as a written warning. I have examined this note and I do not consider it to be a written warning rather it is a note to the complainant requesting her to attend a meeting on 11th December, 2001 in Mr. A's office and the reason given for that meeting was "in view of the fact that you refused to obey a reasonable instruction issued by me". Hence I find that this incident is not outside the time limits set by the Employment Equality Act, 1998 and that I have jurisdiction to investigate the allegation further. I note that the three alleged incidences appear to be closely related given that they arise from issues between the same two employees over a continuous period and involve discrimination on the same grounds namely marital and family status. Having regard to Section 77(5) of the 1998 Act I am satisfied that the final incident is the most recent occurrence of the alleged acts of discrimination for which the complainant is seeking redress and I have jurisdiction to investigate all three issues referred by the complainant.
5.4 The allegation relating to Mr. A's request to staff to resign en mass so that the respondent would take over the Worklink Programme in Donegal occurred prior to the take-over and the take-over occurred around October, 1999. The complainant alleges that Mr. A's request discriminated against her on the grounds of marital and family status. The respondent contended that the complainant could not have been discriminated against on the grounds of her marital and family status as Mr. A is alleged to have asked other staff to resign and, according to the respondent, they all had the same marital and family status as the complainant. Assuming that the alleged request occurred after 18th October, 1999 (the date of commencement of the Employment Equality Act, 1998) I find that Mr. A treated all staff the same irrespective of their marital and family status.
5.5 It is the complainant's contention that the respondent refused to pay her travel and subsistence when she travelled to Moville to work as opposed to her permanent office base in Letterkenny. It is her contention that she was entitled to travel and subsistence from Letterkenny to Moville even though she travelled from her home in Buncrana to Moville. According to the complainant this happened from October, 1999. In a letter to the respondent the complainant listed a number of dates on which she alleges that she was entitled to travel and subsistence for a period from February, 2000 to 10th December, 2001. It should be noted that no actual written travel and subsistence claims were made by the complainant at the time because she says Mr. A told her that she had no entitlement to travel and subsistence for these trips.
5.6 Under Section 6(1) of the Employment Equality Act, 1998 "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".
In relation to marital and family status Section 6(2) of the 1998 Act states:
"As between any 2 persons the discriminatory grounds ... are
(b) that they are of different marital status
(c) that one has family status and the other does not".
It is the complainant's contention that Mr. A disallowed her request for travel expenses when she had to travel to an office which was not her permanent office base.
At the hearing of this claim she stated that Mr. A told her not to bother applying for travel and subsistence expenses as the claim would not be approved. The respondent has denied this and there is no evidence that this exchange took place. It is the respondent's contention that the complainant has the same entitlement to travel and subsistence as all other staff in the organisation and that a refusal to approve travel and subsistence expenditure is not related to a person's marital or family status. I note that when Mr. A is alleged to have told the complainant not to make a claim for travel and subsistence she did not contest this or indeed raise it with Mr. A's superior officer or with Ms. B who also approved her travel and subsistence claims. I further note that the complainant did not make a written application for travel and subsistence in respect of these specific trips on any occasion during the period (from October, 1999 to December, 2001) even though she alleges that she was entitled to travel and subsistence on 24 different days in that period. Hence the respondent could not refuse individual requests for travel and subsistence on these days as no requests were made. Having regard to the provisions of Section 6 of the Act, as set out above, I find that there is no evidence that the complainant was treated less favourably on the grounds of marital and family status than other persons in relation to travel and subsistence expenditure. In conclusion I find that the complainant has failed to establish a 'prima facie' claim of discrimination in relation to this allegation.
5.7 The final allegation relates to the refusal by the complainant to travel by bus with clients attending the Office Christmas Party on 7th December, 2001 and the resultant verbal warning she received from Mr. A at a meeting on 11th December, 2001. It is the complainant's contention that this verbal warning constituted discrimination on the grounds of marital and family status because the requirement on her to travel by bus to and from the Christmas party adversely impacted on her as a married woman with five children two of whom are attending College and were not at home on the night in question and the other three are aged from 7 to 13. If the complainant travelled by bus to and from the party it meant that she had to return to Letterkenny on the bus and then drive home to Buncrana whereas if she travelled by car she could return home directly without having to go to Letterkenny. At the hearing of this claim the complainant said that she was only informed by Mr. A on the afternoon of the Christmas party (7th December, 2001) that she had to travel by bus and this was inadequate notice to enable her put adequate childminding arrangements in place.
5.8 There is a conflict between the parties as to when the complainant was told that she would have to travel to the party by bus. According to the respondent Mr. A raised this with the complainant at team meetings on 29th November, 2001 and 5th December, 2001. The complainant, Mr. A and Ms. B were present at the meeting on 29th November, 2001 while the complainant, Mr. A and Ms. C were present at the meeting on 5th December, 2001. The complainant could not recall the meeting on 29th November, 2001. Statements were received from Ms. B and Ms C. According to Ms. B the complainant was told at the meeting on 29th November, 2001 that she would have to travel by bus with the clients to the Christmas party. She further stated that, on previous occasions, she had to accompany clients on the bus to the Christmas party. I note that Ms. B is also married with a family status. In relation to the meeting on 5th December, 2001 Ms. C has stated that the complainant was not told that she had to travel by bus with the clients. She further stated that she has never been asked to accompany clients by bus to the Christmas party. The respondent indicated that only clients travelling from Letterkenny to the Christmas party were accompanied by a staff member as these clients met at a central venue to prepare and then proceed to the party. Clients travelling from Moville were collected from their homes and a staff member was not required to accompany them on the bus as the journey to and from the party venue to each home would be much longer. There is a conflict in the evidence in relation to this matter. Where there is a conflict in the evidence concerning the facts the Equality Officer must address the question of whether the balance of probabilities tips in favour of the complainant or the respondent.
5.9 In this context I consider it useful to examine what actually happened on the night in question. The complainant travelled behind the bus in her car to the party. The party finished at 12.30a.m. approximately and the bus for Letterkenny departed. Just before the party finished one of the clients became ill and an ambulance had to be called. The complainant, Mr. A and Ms. B awaited the arrival of the ambulance which arrived at 2.30a.m. Mr. A accompanied the client to the hospital and left the complainant and Ms. B behind him. The complainant then drove home. Had the complainant travelled by bus with the clients to Letterkenny there is every likelihood that she would have returned home earlier. Furthermore if the complainant had short notice to enable her to arrange childminding facilities for that night one would expect that she would have been anxious to return home as early as possible. Therefore I find that the balance of probabilities tips in favour of the respondent in relation to the issue of the complainant having been given adequate notice of the requirement on her to travel by bus. In these circumstances I find that the respondent did not discriminate against the complainant on the grounds of her marital or family status when it issued her with a verbal warning for having refused to travel by bus with clients to the Christmas party.
6. DECISION
6.1 In view of the foregoing I find that the North Western Health Board did not discriminate against or Ms. Christine Waldron in terms of Sections 6(1), 6(2)(b) and 6(2)(c) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.
______________________
Gerardine Coyle
Equality Officer
20th May, 2003