CARROLL (REPRESENTED BY SIPTU)
-v-
LIMERICK CITY COUNCIL
1. DISPUTE
This dispute involves a claim by Ms. Marie Carroll that she was discriminated against by Limerick City Council on grounds of gender, in terms of section 6 of the Employment Equality Acts, 1998 -2004 and contrary to section 8 of those Acts when it removed her from operational duties as a firefighter and placed in alternative duties outside the fire service shortly after she informed the respondent of her pregnancy in October, 2004.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a firefighter in December, 1999. In late October, 2004 she informed the respondent's Chief Fire Officer that she was pregnant. She states that she was immediately removed from operational duties and was initially assigned non-operational duties within the fire station. She was subsequently transferred to an administrative post in the respondent's Environment Department in early December, 2004. She contends that the respondent's behaviour was premature in that it did not explore any suitable employment alternatives in her normal working environment before transferring her to administrative duties in the Environment Department and submits that this treatment constitutes discrimination of her on grounds of gender, contrary to the Employment Equality Acts, 1998-2004. The respondent rejects this assertion and submits that reassignment of the complainant was appropriate in the circumstances.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2004 to the Equality Tribunal on 29 March, 2005. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a Hearing of the complaint took place on 8 March, 2007 A number of points emerged at the Hearing which required further clarification and gave rise to correspondence between the parties and the Equality Officer. This process concluded in early September, 2007.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is a firefighter with the respondent since December, 1999. She states that the respondent does not have a policy on Pregnancy and Firefighters and from March, 2002 she entered into correspondence with the respondent - in her capacity as an employee and as a trade union representative - along with a female firefighter colleague, on this matter. She states that on 26 October, 2004 she informed the respondent's Chief Fire Officer (Mr. R) that she was pregnant. She contends that his immediate response was "I presume you will be on Health and Safety Leave". She adds that when she indicated to him that she understood Health and Safety Leave to be a last resort he responded by stating that "he would contact Human Resources to find alternative work in City Hall". The complainant states that she was surprised by this comment as she was of the view that the first port of call for sourcing alternative work would be the fire service. She adds that when she challenged Mr. R on this he replied that there were no vacancies at administrative level and the only vacancy required the holder to have an Engineering Degree. The complainant contends that the roles of Sub Officer and Station Officer involve a considerable amount of administrative duties. She further contends that these and other non-operational duties could be performed by pregnant firefighters which would enable them remain in a station environment during pregnancy. The complainant states that such arrangements exist in the Dublin Fire Service as well as areas of the Fire Service in Northern Ireland, the UK and Holland. She adds that when she raised this point with Mr. R he replied "I don't want to set a precedent for sick or injured firefighters to get light duties".
3.2 The complainant states that she met again with Mr. R on 29 October, 2004, when she was accompanied by a Union representative. She adds he informed her that the respondent's Health and Safety Officer was on leave that week and on his return a risk assessment of the complainant's working environment would be conducted, with particular reference to her pregnancy. The complainant remained within the station performing non-operational duties (cooking, clerical duties, driving, assisting the Station Officer with administrative tasks) from then until 6 December, 2004 - when she commenced duty in the respondent's Environment Department. She states that during this time the tasks were assigned to her by the Sub-Officer and Station Officer and no instruction was given to them by Management as regards what duties she could perform. The complainant states she met with Mr. R on Friday 26 November, 2004 and in the course of this meeting he informed her that as a result of the risk assessment she was being transferred to the Environment Department with effect from the following Monday. The complainant states she was dissatisfied with the situation, particularly as she had not been consulted and sought the assistance of her trade union in the matter. Her trade union official (Mr. C) immediately contacted Mr. W in the respondent's Human Resources Department. The complainant asserts that when queried by Mr. C as to the speed with which she was being transferred Mr. W replied "he was not prepared to have the complainant sitting on her arse in the station doing nothing". Her transfer date was extended to 6 December, 2004.
3.3 The complainant states that she had undertaken some research prior to this on modified duties in fire service operations, which she believed could be carried out by pregnant firefighters. The areas identified as suitable by the complainant Fire Safety/Prevention, Administrative Work in respect of Hydrants, Equipment Records and Maintenance Records, Records on new housing estates etc. in the locality. She states that she compiled a list of possible duties and furnished a copy of same to the respondent for consideration in the course of a meeting on the afternoon of 3 December, 2004. The complainant states that later that afternoon her trade union representative was informed the list of modified duties were not acceptable and that she could report for duty to the Environment Department the following Monday or she could avail of Health and Safety Leave. The complainant reported for duty under protest. The complainant states that during her period in the Environment Department she only attended one training session at the station, despite the fact she was told attendance at same was not a problem. In this regards she notes that nobody in Management told either her Sub-Officer or Station Officer what arrangements were in place to accommodate her attendance at training. She argues that such treatment impacts adversely on her prospects of future advancement in the fire service and therefore constitutes less favourable treatment of her on grounds of gender.
3.4 The complainant submits that there is a requirement on the respondent to adopt and operate a comprehensive policy on pregnant firefighters and that its practice of dealing with such matters on a case by case basis is inadequate in this regard. She contends that the health and safety risk assessment was inadequate as it focussed on operational duties only and submits that the involvement of the respondent's Health and Safety Officer in the process was superficial. In this regard she seeks to rely on the Equality Office decision in Doorty v University College Dublin . She further contends that the respondent could not have given appropriate consideration to the proposed list of modified duties in the limited timeframe involved. She submits therefore that her transfer to the respondent's Environment Department constitutes less favourable treatment of her on grounds of gender. In this regard she seeks to rely on several decisions of the UK Employment Tribunal and Employment Appeal's Tribunal as well as the decision of this Tribunal in May v ADM Ringaskiddy .
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent accepts that there is no formal policy in existence in respect of pregnant firefighters and states that decisions on same are evaluated on an individual case by case basis. It rejects the assertion that it treated the complainant in an unlawful manner and states that it acted fully in accordance with the provisions of the Maternity Protection Acts. It submits that the practice it operates provides the best possible opportunity for employees to be assigned to alternative duties rather than being placed on Health and Safety Leave under maternity legislation. It adds that the complainant is employed by Limerick City Council and it is therefore appropriate, in sourcing alternative employment for her during her pregnancy, to examine employment options in the wider area of the entire Council. It submits that such an approach is permitted under the maternity legislation and compliance with those statues take precedence over any contractual arrangement which the complainant contends she has - i.e. that alternative employment would be sourced in the fire service.
4.2 The respondent states the Health and Safety Statement in operation for Limerick City Fire Service at the time had been developed in consultation with staff representatives and other interested parties and came into operation in February, 2003. It confirms that this document, along with the relevant regulations under maternity protection legislation, formed the basis of the risk assessment carried out in respect of the complainant, with particular reference to her pregnancy. The respondent's Chief Fire Officer (Mr. R) states that he considered the fire station to be the first port of call in sourcing alternative duties for a pregnant employee and if that was not feasible, then further afield within the Council. He adds that he viewed Health and Safety Leave as a last resort and denied making the comment attributed to him by the respondent in the course of their conversation on 26 October, 2004. He adds that he did have concerns about "light duties" for firefighters but that this was in the context of injured firefighters and the on-going industrial relations issues which existed at that time with the relevant trade unions. The respondent (Mr. R) states that operational and non-operational duties within the station were considered in the context of the risk assessment but added he was of the view that the non-operational duties identified by the complainant were part of the functions assigned to other fire service personnel in the context of their daily routines or were not suitable to her grade. He accepts that the complainant was assigned the duties detailed by her for a number of weeks whilst the risk assessment was conducted, but states that such an arrangement was not sustainable in the longer term as they were duties carried out by other personnel as part of their daily tasks.
4.3 The respondent is unable to offer an explanation as to why the risk assessment took the length of time it did but suggest that the unavailability of its Health and Safety Officer may have been a factor. The respondent (Mr. R) states that the initial risk assessment was carried out by him and the Assistant Chief Fire Officer in the first instance. It adds that their conclusions were endorsed by the Health and Safety Officer and the only option available was to transfer the complainant to alternative duties outside of the fire station environment. It states that Mr. R consulted with the Director of Environment Services about the matter and having done so, it was decided to assign the complainant to the Environment Department with effect from 29 November, 2004. The respondent states that following the intervention of her trade union her transfer was delayed and the respondent met with the complainant on 3 December, 2004 in the course of which she submitted a list of modified duties she might perform. The respondent accepts that it did not consider these duties suitable and/or was of the view they were part of other fire personnel regular duties. It adds that they did not warrant the creation of a new post within the Station and it refused same. The respondent rejects the assertion that it made a snap decision on the proposal as these alternatives had been mentioned previously and Mr. R had been able to give some consideration to them at that time. It accepts that Dublin Fire Service had an agreed policy on pregnant firefighters but submits that certain elements of that policy could not realistically be applied to Limerick Fire Service given its size and the more extensive range of duties available in Dublin. Consequently, the complainant was reassigned to the Environment Department on 6 December, 2004 to fill a vacant post there. The respondent submits that this represents an appropriate use of resources and states that there was no obligation on it to create a new post for a staff member who is pregnant. The respondent states that the complainant's transfer did not result in a reduction of her rate of pay or allowances for the duration of her time there and her working week was reduced by eight hours per week. Finally, the respondent rejects that Mr. W used the language attributed to him by the complainant although it accepts that he informed Mr. C that he (Mr. W) was not prepared to entertain having the complainant sitting in the Fire Station for the duration of her pregnancy when there was a position available in the Environment Department.
4.4 The respondent accepts that there are no formal structures in existence (either within the respondent or from central government) to ensure that the complainant was aware of the training which was conducted during her absence. It states that the complainant was informed by both Mr. R and Mr. D (of the respondent's HR Department) that she could attend all training sessions which involved lectures/presentations and could attend operational training as an observer. It adds that there was no limit placed on the amount of time the complainant could spend on this and she failed to avail of this opportunity to any significant extent during the period of transfer, despite the fact that she would have been well aware of the shift patterns and training times during that period. It rejects the complainant's assertion that her non-attendance at training during this period adversely impacted on her promotion prospects and submits that the experience gained during the period gave her a broader knowledge and work experience which would be beneficial to future advancement.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not Limerick City Council discriminated against the Ms. Carroll on grounds of gender, in terms of section 6 of the Employment Equality Acts, 1998 -2007 and contrary to section 8 of those Acts when it removed her from operational duties as a firefighter and placed in alternative duties outside the fire service shortly after she informed the respondent of her pregnancy in October, 2004. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998 and 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 The Maternity Protection Acts, 1994 and 2004 and the Regulations made thereunder inter alia transpose the EU Pregnant Worker's Directive into Irish law. Article 4 of that Directive obliges an employer to conduct a risk assessment of the working environment with specific reference to the potential risk of that environment for pregnant workers (workers who have recently given birth or who are breastfeeding). Article 5 of the Directive requires an employer, in circumstances where an assessment reveals a risk to the health and safety of a pregnant employee, to avoid exposure to the risk by temporarily adjusting the working conditions and/or working hours of that employee, or where such adjustment is not feasible to move the reassign the employee to other work. These Articles are transposed in Irish law by the Safety, Health and Welfare at Work (Pregnant Employees etc) Regulations 1994 . Article 5 of the Directive goes on to say that should reassignment to alternative employment not prove feasible, the employee shall be granted leave from her employment in accordance with national legislation/practice. That element of Directive is transposed into Irish law by Section 18 of the Maternity Protection Acts, 1994 and 2004. It is accepted by the complainant that it was not possible for her to continue on operational duties in Limerick Fire Service once she became aware of her pregnancy. In those circumstances the maternity protection legislation requires the employer to either source suitable alternative employment for the complainant or place her on Health and Safety Leave. It is clear therefore that pregnant employees (employees who have recently given birth and employees who are breastfeeding) are given special protection under the maternity protection legislation. This special protection is permitted by section 26 of the Employment Equality Acts, 2004-2007 which provides that it shall not be unlawful for an employer to provide or arrange treatment which confers a benefit of women in connection with pregnancy or maternity. However, this provision does not require an employer to afford a pregnant employee treatment beyond what is obliged by statute, although it is free to do so.
5.4 I note the complainant accepts that Limerick City Council is her employer. It follows therefore that it is open to the respondent to source alternative duties for a pregnant employee anywhere within the Council. The complainant argues that the first port of call in sourcing alternative duties should be her normal working environment i.e. the station. She further submits that the risk assessment was inadequate because the respondent's Health and Safety Officer only had superficial involvement in the process. The respondent submitted its Health and Safety Statement to this Tribunal. The Statement covers an extensive range of hazards which a firefighter might be exposed to in his/her routine working day and includes a specific section for pregnant firefighters. The Statement was adopted in February, 2003 and was the subject of consultation before adoption (the complainant was the only person to offer comments on it). I am satisfied that the Statement represents a comprehensive overview of the potential hazards to all firefighters during the working day. The complainant submits that she should have been consulted by the respondent when it conducted its risk assessment of her. Whilst this might be considered best practice the complainant furnished no evidence to support her assertion of such an obligation. In fact I note that Article 5 of the Pregnant Worker's Directive firmly places that obligation on the employer. It appears to me that the respondent was endeavouring to comply with its obligations under the maternity protection legislation in forming the opinion that there was no suitable work within the fire station which the complainant could perform on a long term basis (for the period between notification of her pregnancy and the commencement of her maternity leave) and it follows that its actions in this regard could not be considered as constituting less favourable treatment of the complainant on grounds of gender contrary to the Employment Equality Act, 1998-2007. The fact that it permitted the complainant to remain there for the 4/5 weeks following her announcement of her pregnancy performing certain non-operational duties displays, in my view, a positive and reasonable approach to the matter. In conclusion on this point the complainant contends that the respondent gave little or no consideration to alternative duties in the fire station which were suggested by her. The respondent states that the duties suggested by the complainant were either performed by other personnel or were not suitable. The nature of such a dispute falls within the remit of maternity protection legislation and redress for such disputes lies with another forum in accordance with section 30 of the Maternity Protection Acts, 1994 and 2004.
5.5 The complainant submits that her transfer to the respondent Environment Department was done without prior consultation and was in essence under duress. She contends that this constitutes less favourable treatment of her and cites a number of cases in support of her assertion in this regard. As stated previously I am satisfied that once the respondent is unable to source suitable alternative employment in the complainant's normal working environment (following a risk assessment) it is open to it to examine options available in other areas of the Council, in accordance with the maternity protection legislation. The cases cited by the complainant all relate to either a failure on the part of the employer to carry out an appropriate risk assessment (or one at all) or making a unilateral decision to cease the employee's employment in one way or another because of pregnancy. They are therefore not relevant to the instant case as the respondent endeavoured to conduct itself in accordance with maternity protection legislation as regards the risk assessment. I note that the complainant suffered no financial loss during her transfer to the respondent's Environment Department. Having considered all of the evidence on this point I find that the complainant has failed to establish a prima facie case of discrimination on grounds of gender. Before leaving this matter I feel I must address the issue of the comment attributed to Mr. W by the complainant. This comment was not made to the complainant herself but to Mr. C (her trade union official). Mr. C was forthright in his evidence on this point at the Hearing. Mr. W was not present to rebut this but denied he made the comment in the manner attributed to him via the respondent's written submission. It is clear from the evidence submitted by the parties that the issue of pregnant firefighters in Limerick City Council had been the subjected of much correspondence between it and the complainant over a number of years and I am satisfied that the matter had caused some strain between the parties. I am therefore satisfied, on balance, that Mr. W made the comment attributed to him by Mr. C. Whilst I view this comment as ill advised I cannot hold that it is, of itself, discriminatory.
5.6 The complainant submits that her non-attendance at training for the duration of her transfer to the Environment Department adversely impacts on her future promotion prospects and therefore constitutes less favourable treatment of her contrary to the Acts. It is common case that there were no formal structures in operation in the respondent as regards notifying pregnant firefighters of training schedules. It is also agreed between the parties that the complainant had been assured by Mr. D that she could attend fire service training as and when she wished. It is clear to me that having been removed for operational duties as a result of her pregnancy it was not possible for the complainant to participate in operational training, but could attend same as an observer. The complainant expected the respondent to take an active role on this point by advising her of training opportunities whilst at the same time adopting a passive role herself. It is clear to me that she had a good working relationship with both her Sub Officer and Station Officer and in my view it was open to her to contact them direct to ascertain training opportunities, particularly having been given the assurance that time off for the Environment Department was not an issue. Having given careful consideration to the evidence on this matter I find, on balance, that the complainant has failed to establish a prima facie case of discrimination on grounds of gender.
5.7 It is abundantly clear that a considerable communication problem exists within the respondent on this matter. I note the complainant's assertion that there is a requirement on the respondent to adopt and operate a comprehensive policy on pregnant firefighters. Again whilst this might be best practice and I note that such a policy exists in Dublin Fire Service, there is no statutory obligation to have such a policy. Whilst not a binding element of my decision, I would recommend that the respondent take steps, if it has not already done so, to publish a comprehensive document clearly setting out its policy/practice as regards pregnant firefighters (including training) and ensure that this document is communicated to all female firefighters and Managers within the respondent Fire Service. Such a document would provide clarity on the matter at a time when an increased number of women are choosing the Fire Service as a career.
6. DECISION OF THE EQUALITY OFFICER.
I find the complainant has failed to establish a prima facie case of discrimination on grounds of gender, in terms of section 6 of the Employment Equality Acts, 1998 -2007 and contrary to section 8 of those Acts and her complaint must therefore fail.
____________________________
Vivian Jackson
Equality Officer
17 December, 2007
1 DEC-E2004-043
2 DEC-E2006-004
3 Council Directive 92/85/EEC
4 SI No. 446 of 1994