Doorty AND University College Dublin(Represented by IBEC)
1. DISPUTE
1.1 This dispute concerns a claim by Dr Kevina Doorty that she was discriminated against by University College Dublin on the ground of gender contrary to the provisions of the Employment Equality Act, 1998 when she was placed on health and safety leave during her pregnancy. She also claimed she was victimised by the respondent.
1.2 The complainant referred a claim to the Director of Equality Investigations on 7 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 on 9 September 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 2 October 2003. Subsequent correspondence with the parties concluded on 10 February 2004.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant commenced employment with the respondent as a Post-Doctoral Research Fellow on a two-year fixed term contract on 1 October 2000. Her role was to work on a project funded by Enterprise Ireland which had awarded a research grant to the Senior Lecturer in the Department of Pharmacology. The post involved significant laboratory work, together with supervision of undergraduate and post-graduate students and responsibility for ordering equipment and consumables for the laboratory.
2.2 In January 2002, on her return to work after the Christmas break, the complainant was told by the Senior Lecturer that he had booked flights for a conference in Switzerland the following month at which she was due to present some of the research findings. At this stage, the complainant informed him that she was pregnant and that her doctor had expressed concerns at her continuing with her laboratory work, which involved dealing with known teratogenic drugs (that is, drugs which could cause malformation to the developing embryo). The complainant said the Senior Lecturer was "visibly taken aback" by the news and said "that changes things considerably". While he congratulated her, she said he asked what exactly she could and could not do, as well as asking whether she could attend the conference. The complainant said she told him she would ask her doctor whether there was any risk in flying, and she suggested that she could provide a list of tasks she could carry out in lieu of the laboratory work. She said she also reminded him of the interest in lecturing which she had expressed before Christmas. The complainant said the meeting concluded with the Senior Lecturer telling her to continue her supervision of students and he would revert to her about the broader issues.
2.3 On 17 January, the respondent contracted an independent company to carry out a risk assessment of the complainant's work. On 28 January, the complainant was told that the risk assessment had confirmed that the complainant's work area generally, including the laboratory and her office, were unsuitable for her to continue to work in. In particular, the drugs being used in laboratory work, by both the complainant and her colleagues, constituted high risk factors. The report concluded that additional control measures would reduce the risk, but that it would not be possible to reduce the risk to an acceptable level within the time frame required. It recommended that the complainant be given alternative duties away from the laboratories or that consideration be given to health and safety leave, in accordance with the provisions of the Maternity Protection Act, 1994.
2.4 The complainant said that she continued carrying out all of her normal duties, except the laboratory work, until 18 February. She was then invited to attend a meeting on the following day with the Senior Lecturer and the Employee Relations Manager. At this meeting, the complainant was told she was being placed on health and safety leave with effect from 11 March. She would receive full pay for the 21 days between 18 February and 11 March, and she could then apply for benefit from the Department of Social and Family Affairs. She was given a letter dated 18 February confirming these details. The complainant said she was unhappy with this decision and felt this meeting had been conducted in a way that displayed a blatant disregard for her own feelings on the subject of her pregnancy and her career.
2.5 The complainant said that on 5 March she received a further letter from the Employee Relations Manager indicating that she would be placed on health and safety leave with effect from 25 March. She telephoned him to enquire about the contradiction between this letter and the letter of 18 February. She said that he told her she would have to attend work for a period of 21 days, during which the respondent would pay her, and she would then be eligible for state benefit. The complainant said that she informed the Employee Relations Manager that he had misinterpreted the legislation and that she should not be placed on health and safety leave as, despite the respondent's inability to find alternative work, she had been engaged in full-time and productive work during the previous weeks.
2.6 The complainant went on health and safety leave on 25 March as arranged but she challenged the respondent's decision and was awarded €5,000 compensation by a Rights Commissioner for breach of the Maternity Protection Act (Ref MP9470/02/TB).
2.7 The complainant said that the decision to place her on health and safety leave effectively brought an end to her career as a research scientist. Her maternity leave was due to commence at the end of July 2002, so she had no possibility of returning to work prior to the end of her contract on 30 September. The consequence of the decision to place her on health and safety leave was that her income dropped from approximately €498 per week to €90 per week state benefit. She said that, once the results of the risk assessment were available, the only solution considered by the respondent was how to dispose of her. She pointed out that a post-graduate student, who had become available at the end of March, was employed on the research project following her departure. She suggested there was a connection between the post-graduate student's availability and the fact that she received a second letter placing her on health and safety leave with effect from the later date of 25 March.
2.8 The complainant also claimed that she was victimised by the respondent in that her library access rights were withdrawn despite the fact that she had been assured that her employment would continue in all other respects while on health and safety leave. She said that the respondent's attempts to make her work the first 21 days of the health and safety leave, contrary to the provisions of the Maternity Protection Act, was evidence of further victimisation of her for the fact that she was pregnant and the fact that she had already indicated her intention to challenge to place her on such leave.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denied that it had discriminated against the complainant when placing her on health and safety leave. It said the risk assessment forced it to consider providing alternative work for the complainant. As she was employed in a specific funded research post, no suitable alternative was available. It said the other duties referred to by the complainant would not have constituted even 30% of her original workload, and were therefore not suitable alternatives for employment during her pregnancy.
3.2 The respondent acknowledged that the complainant was told at a meeting on 19 February that she was being placed on health and safety leave with effect from 11 March and that she would be required to work as normal for the intervening 21 days. The respondent said this was nothing more than a genuine misinterpretation of the provisions of the Maternity Protection Act, caused by the fact that the situation had never arisen before. The respondent said that its second letter, extending the 21 day period to 25 March, arose from the complainant's request that she be given time to seek advice when she was first told about the health and safety leave.
3.3 The respondent also denied victimisation in relation to the withdrawal of the complainant's library access. It said that the library operated on the basis of obtaining a monthly record from the salaries section of all people no longer on the payroll and removing such people from the list of staff eligible to use the library. As the complainant was not included in the list sent to the library in April 2002, the library automatically restricted her access. The respondent pointed out that the matter was first brought to its attention on the day of the Rights Commissioner hearing. Had Personnel been advised of the problem at the time it occurred, the oversight would have been corrected immediately.
3.4 The respondent said there was no attempt to victimise the complainant by requiring her to work the first 21 days of health and safety leave. As it previously said, some confusion existed as to what the legislation required but the respondent said this did not confirm any intent on the respondent's part to discriminate against or victimise the complainant.
3.5 The respondent acknowledged that the remaining experimental work necessary to complete the project were carried out by the post-graduate student, who had been involved on other work until the end of March. It denied emphatically that his forthcoming availability had any connection with the extension of the period during which it had required the complainant to work.
3.6 The respondent said it acted at all times to safeguard the health of both the complainant and her unborn child on foot of medical evidence and advice from a health and safety practitioner. It said that other options for work simply did not exist at a level commensurate with the complainant's skills and qualifications, and - since she could not carry out the laboratory work which constituted approximately 70% of her duties - placing her on health and safety leave was the only option available to it.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against her on the ground of gender contrary to the provisions of the Employment Equality Act, 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include gender. Section 8 provides that:
(1)In relation to-
(a) access to employment...
(b) conditions of employment...
an employer shall not discriminate against an employee or prospective employee...
The complainant of discrimination against the complainant
4.3 The procedural rule applied in claims of gender discrimination is that prescribed by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (SI No 337 of 2000). The Labour Court, in applying this rule in a recent case said this meant that "...where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities." (Customer Perception Ltd and Leydon [EED0317]). The facts in this claim are not in dispute, and it is clear to me that discrimination may be inferred from them. I am satisfied, therefore, that I am only required to consider the respondent's arguments that its decision to place the complainant on health and safety leave was justifiable.
4.4 It was clear from the report commissioned by the respondent that the complainant could not continue to fulfill her research duties. In circumstances where such risks to pregnant employees are identified, Article 5 of Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers (transposed into Irish law by the Maternity Protection Act 1994) obliges an employer to avoid exposure to the risk by "temporarily adjusting the working conditions and/or the working hours of the worker concerned...". If such adjustment "is not technically and/or objectively feasible or cannot be reasonably required on duly substantiated grounds, the employer shall take the necessary measures to move the worker concerned to another job." If this movement "is not technically and/or objectively feasible or cannot be reasonably required on duly substantiated grounds, the worker concerned shall be granted leave in accordance with national legislation and/or national practice for the whole of the period necessary to protect her safety or health."
4.5 The respondent admitted that it was unfamiliar with the requirements of the 1994 Act and it improperly required the complainant to work the first 21 days of health and safety leave. Such mistakes do not automatically constitute discriminatory treatment, but it is interesting that the Rights Commissioner's finding of a breach of the 1994 Act did not hinge on such a technical point. He found that the respondent had not given the option of moving the complainant the consideration that was required under the legislation.
4.6 Obviously, the respondent was in a difficult position in that external funding was being provided for a specific, time-bound research project. It had obligations to the funding body to ensure that the project was completed in time, and the fact that the complainant could not now carry out an estimated 70% of her duties could have put the project in jeopardy.
4.7 However, the respondent also had obligations to the complainant for the duration of her contract of employment. I am not satisfied from the evidence of the respondent that it gave adequate consideration to finding creative solutions to an undoubted problem. From its point of view, the availability of the postgraduate student was a clear solution to the completion of the required experiments. No consideration was given, for example, to permitting the complainant carry out the 30% of her duties she was still able to perform, while the post-graduate student carried out the remainder. The respondent did not consider either whether the complainant could have been moved to another area of work. I find that the respondent discriminated against the complainant in placing her on health and safety leave without due consideration.
4.8 It should be pointed out that I cannot accept the complainant's assertions that the actions of the respondent brought about the end of her career as a research scientist. She did not dispute that the chemicals involved in the experiments were teratogenic, and she quite simply could not have continued to work with them once she became pregnant. The fact of her pregnancy was what resulted in her being unable to carry out the relevant duties. I am unable to see any reason why she could not carry out research involving materials which presented no health and safety risk.
The complainant of victimisation
4.9 Section 74 (2) provides that:
...victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith --
(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c).
4.10 The complainant's allegations of victimisation revolve around the extension of the requirement on her to work prior to actually going on health and safety leave and the removal of her library borrowing privileges. As I am unable to identify any advantage derived by the respondent from the extension, since the complainant was unable to carry out the research duties, I accept the explanation that the extension was to give the complainant time to seek advice. I also find that the removal of borrowing privileges was an error, and I note that the matter was not brought to the attention of the respondent until the day of the Rights Commissioner hearing. Accordingly, I do not find that the respondent victimised the complainant contrary to the provisions of the 1998 Act.
5. DECISION
5.1 Based on the foregoing, I find that University College Dublin discriminated against Dr Doorty on the ground of gender, contrary to the provisions of the Employment Equality Act, 1998.
5.2 I hereby order
(i) that the respondent pay the complainant the sum of €5,000 in compensation for the effects of the discrimination;
(ii) that the respondent put in place an adequate and appropriate policy to deal with the placing of employees on health and safety leave.
_____________________
Anne-Marie Lynch
Equality Officer
14 July 2004