BYRNE
(REPRESENTED BY PADRAIG O'DONOVAN & CO. - SOLICITORS)
AND
REYNOLDS
(REPRESENTED BY GALLAGHER, SHATTER - SOLICITORS)
1. DISPUTE
This dispute involves a claim by Ms. Alison Byrne that she was dismissed (within the meaning of section 2(1) of the Acts) by Dr. Reynolds in circumstances amounting to discrimination, on grounds of gender, marital status and family status, in terms of section 6 of the Acts and contrary to section 77 of the Acts when she resigned from her employment in February, 2005.
2. BACKGROUND
2.1 The complainant was employed by the respondent from July, 1989 to February, 2005. Her tasks centred on reception/administrative duties at his surgery. At the outset she worked on a full-time basis but reduced her working pattern to a three day week in 1998, with the agreement of the respondent, following the birth of her second child. Following the birth of her third child in 2003 the complainant continued to work three days a week but, with the agreement of the respondent, worked one morning and one afternoon of those days from home. The complainant states that in April, 2004 the respondent sought to change those arrangements. She argues that this constitutes discrimination of her contrary to the Acts. She further alleges that the respondent's attitude towards her deteriorated after April, 2004 to such an extent that she went on long term sick leave in June, 2004, following a further attempt to alter her working arrangements and she never resumed work. She resigned on 5 February, 2005 because she believed she had no alternative and submits that this constitutes discriminatory dismissal on the grounds cited, contrary to the Acts. The respondent rejects the complainant's assertions and states that she resigned her position in February, 2005 after a period of sick leave. He adds that employment relationship between them broke down because the complainant was not performing the duties she was employed to do and he confronted her about this. Notwithstanding this, the respondent submits that (i) the complainant referred the complaint outside of the six months time limit provided at section 77 of the Acts and (ii) that the Equality Tribunal has no jurisdiction to investigate the claim because any alleged discriminatory dismissal occurred before July, 2004 - the date the Equality Act, 2004 transferred jurisdiction for such acts to the Tribunal from the Labour Court
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 25 February, 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 19 September, 2006. A number of issues emerged at the Hearing which required clarification and gave rise to correspondence subsequent to the Hearing.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant contends that the complaint is referred within time and the Equality Tribunal has jurisdiction to investigate it. It is submitted on her behalf that the events of 24 June, 2004 constitute a trigger for the allegations of discriminatory dismissal as it was on that day the respondent altered her working arrangements and required her to work from the surgery on each of the three days she was rostered to work, removing the arrangement previously agreed between them and operated by her. It is further submitted that this requirement continued to exist for the period the complainant was absent from work due to illness until she resigned on 5 February, 2005, as the respondent never contacted her to indicate the contrary. The complaint was referred to the Equality Tribunal on 25 February, 2005 - three weeks after she tendered her resignation and is therefore within the timelimit prescribed at section 77 of the Acts. It is further submitted on behalf of the complainant that the discriminatory dismissal occurred on 5 February, 2005, which postdates the coming into force of the Equality Act, 2004 and the complaint is therefore properly before the Tribunal
3.2 The complainant states that she commenced work with the respondent in July, 1989 as a full-time Dental Nurse Receptionist. She contends that she was appointed to the post of Practice Manager in 1995 and commenced duties for the second dentist in the practice. She adds that following the birth of her second child in 1998 she requested a change in her working arrangements because of childcare issues and it agreed with the respondent that she could change to part-time hours, working three days a week - Monday, Tuesday and Thursdays. The complainant states that this arrangement worked well and the working relationship between her and the respondent was a good one, in fact she considered the respondent and his wife as friends. The complainant had a third child in 2002 and on her return from maternity leave in 2003 her attendance pattern changed, again by agreement between the parties. She continued to work a three day week but worked from home on Monday afternoon and Thursday morning and attended the surgery Monday morning, Tuesday and Thursday afternoon. She states that this arrangement continued until April, 2004. She adds that the respondent contacted her by telephone on 20 April, 2004 (he was absent on sick leave at that time) and told her he wanted to change her working arrangements and that from then on she was to work at the surgery on Thursday mornings. The complainant accepted this change and apart from the Thursday immediately following the phone call she reported for duty in the surgery on Thursday mornings.
3.3 The complainant states that some days after the phone call on 20 April, 2004 the respondent telephoned her again and took issue with her about the small number of appointments she had made for another dentist in the practice during his absence, asking if she had a problem with the dentist. The complainant rejects this suggestion and states that the working relationship between her and the respondent deteriorated after this - in particular he stopped communicating with her directly a lot of the time. She contends that when she attempted to clarify what the problem was he told her "not to speak with him". The complainant states that the respondent approached her at her desk on 24 June, 2004 and told her that he wanted her to return to work at the surgery on Monday afternoons, thus terminating the arrangement they had reached following her return from maternity leave in 2003. She contends that she told him it would be difficult as she had no childminding arrangement made to which she contends he replied "well get a childminder I pay you enough". She adds that it was her understanding that they would discuss the matter a couple of weeks later as the respondent was going on holiday the following weekend. She states that she was so upset by this matter that she attended her GP and was certified unfit for work due to stress. Between 30 June, 2004 and 14 July, 2004 she received a number of texts from the respondent concerning her failure to report for duty on Monday 28 June, 2004 and matters relating to her sick leave. The respondent states that she did not resume work again and resigned on 5 February, 2005. She adds that she did so because she felt the respondent had treated her badly after fifteen years of service and she could not return. She adds that she did not make any effort to contact the respondent before resigning for the same reason and felt that he could have made an effort to contact her during her absence. Finally, the complainant denies that either the respondent or his wife ever spoke with her about her performance or any other work related matter which they considered problematic.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent submits in the first instance that the complaint is referred outside of the timelimit prescribed by the Acts. It argues that the complainant's referral form indicates that the last date of the alleged discriminatory treatment occurred on 24 June, 2004. The complaint was received by the Equality Tribunal on 25 February, 2005 and is therefore out of time. It further submits that as any alleged discriminatory dismissal therefore occurred prior to July, 2004, it predates the transfer of jurisdiction to the Equality Tribunal to investigate such claims and the matter is not therefore not properly before the Tribunal.
4.2 The respondent agrees that the working arrangements set out at paragraph 3.2 above in respect of the complainant between July, 1998 to April, 2004 are correct. He also accepts that the working relationship between them was a good one at that time and he too classed her as a friend. He adds that both he and his wife were of the opinion, from February, 2004 onwards, that the complainant was not performing the duties at home she was employed to do and the respondent's wife ended up completing those tasks. The respondent asserts that he spoke with the complainant about this problem on three/four occasions but she just shrugged her shoulders. He adds that he took no formal action against the complainant at the time because of the length of time she worked for him and their friendship. The respondent further asserts that he received complaints about the complainant from another dentist in the practice around mid-March and found that the complainant had entered a small number of appointments for that dentist in respect of February, 2004. The respondent confirms that these were the reasons he requested her to report to the surgery on Thursday mornings and accepts that apart from the first day the complainant did so. The respondent accepts that the working relationship between them became strained after this and contends that the complainant was often curt and mono-syllabic in exchanges with him, although he rejects the assertion that he told her not to talk to him.
4.3 The respondent states that after April, 2004 it continued to be apparent to him that the complainant was not completing the tasks she was supposed to be doing at home on Monday afternoons and he decided to request her to return to work in the surgery on all three days of her employment so that she could be supervised. He denies that he raised his voice or acted in an aggressive manner towards the complainant when he spoke with her on 20 June, 2004 about this matter. He also denies that he told her to get a childminder but accepted (at the Hearing) that he was of the view that she could afford one for Monday afternoons on the level of salary he was paying her. The respondent states following this discussion it was his understanding that the complainant would attend for duty at the surgery the following Monday afternoon. He adds that he was on holidays that week and was disappointed to find out that the complainant had not remained in the surgery on the Monday afternoon as requested. The respondent submits that the texts he sent her are curt but are not discriminatory and reflect his disappointment at the situation. He states that the complainant went on sick leave in late June, 2004 and resigned without any further contact between the parties. He accepts that he made no effort to contact the complainant during this time and merely accepted her resignation. He therefore rejects the complainant's assertion that she was dismissed by him.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is (i) whether or not the complaint was referred to this Tribunal within the timelimit provided at section of the Employment Equality Acts, 1998 and 2004 and is properly before me for investigation, and (ii) whether or not the respondent dismissed (within the meaning at section 2(1) of the Acts) the complainant in circumstances amounting to discrimination on grounds of gender, marital status, and family status, in terms of section 6 of the Acts and contrary to section 77 of the Acts when she resigned from her employment in February, 2005. 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 Before dealing with the substantive issues I must first address the point of whether the Tribunal has jurisdiction to investigate this claim. The respondent states that the complainant's referral form indicates the most recent occurrence of the alleged discriminatory act to have taken place on 24 June, 2004. The complaint form was received by this Tribunal on 25 February, 2005 and the respondent therefore submits that the complaint is out of time. It further submits that as any alleged discriminatory dismissal occurred at that time it predates the coming into force of the Equality Act, 2004, which transferred jurisdiction to the Equality Tribunal for investigation of complaints of discriminatory dismissal and the complaint is not therefore properly before the Tribunal. It is common case between the parties as to the working arrangements of the complainant from the start of her employment with the respondent until June, 2004. It is also common case that the complainant's attendance patterns changed over the time to, inter alia, enable her balance her work and family commitments. The respondent accepts that he sought the complainant's return to work on each of the three days she was employed and to terminate the arrangement whereby she worked from home, on 24 June, 2005. Regardless of either party's understanding of what was to occur following that meeting the respondent, in one of his texts to the complainant dated 30 June, 2004, makes in crystal clear to her that he was "not interested in her working from home". It is this unilateral decision by the respondent to amend the complainant's conditions of employment which the complainant takes issue with and submits is discriminatory. It is common case that neither of the parties made an effort to contact each other between end June, 2004 (when the complainant went on sick leave) and 5 February, 2005 (when the complainant resigned). In the circumstances I find it reasonable for the complainant to believe that should she wish to return to work the conditions set out by the respondent in June, 2004 would continue to apply. I am reinforced in this view by the fact that the respondent never retracted his comments to her on this point. In addition the complainant submitted sick certificates for her absence and her contract of employment continued to exist during that period. In my view the impugned requirement continued to apply until 5 February, 2005 - the date of the complainant's resignation - and her complaint is therefore referred within the timelimit prescribed by the Acts. In light of my comments above the respondent's other argument on the issue of jurisdiction falls.
5.3 I shall now address the substantive element of the Ms. Byrne's complaint. Section 85A of the Employment Equality Acts, 1998 and 2004 sets out the burden of proof necessary in claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting she suffered discriminatory treatment. It is only when those facts are proved and are regarded by an Equality Officer to raise an inference of discrimination that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.4 As stated above the working relationship between the parties was a pleasant and affable one for several years, indeed both parties considered the other as a friend. It is clear to me that this friendship influenced the respondent's decision on two separate occasions following the birth of the complainant's children to allow her to adjust her working arrangements, firstly from full-time to part-time and then working some of her part-time hours from home, primarily to look after her young children. Whilst no written terms confirming these arrangements were signed by the parties, I am satisfied, on balance, that no conditions were set by the respondent as to the lifespan of the arrangement of working from home. This arrangement worked well for several months and only became problematic in February, 2005. The respondent asserts that at this time the complainant was not performing the tasks she was expected to do and he confronted her about the matter. No records of these remonstrations exist however. The respondent further states that the complainant failed to carry out his direct instructions in relation to appointments for another dentist in the practice when he (the respondent) was absent from work for a number of weeks in February/March, 2004 due to injury, which resulted in that dentist suffering a significant reduction in the number of patients he saw with a consequent detrimental impact on his income. In the course of the Hearing both parties had an opportunity to separately scrutinise the Appointment Book in question and calculate how many appointments the complainant made for that particular dentist. The examination demonstrated no significant difference between the parties' calculations and does not in my view support the respondent's contention that the complainant failed to follow his instructions in this regard.
5.5 It is well established that a significant majority of part-time workers are women - a point which has been acknowledged by this Tribunal and the Labour Court in the past . Issues surrounding part-time work therefore impact more heavily on women. As stated above the complainant wished to work flexible hours and attendance patterns in order to enable her reconcile her family and working responsibilities. It is a feature of modern society that mothers are more likely to fulfil this role than fathers, therefore as a general proposition women with family responsibilities find in more difficult to work full-time. The complainant was unable to return to her previous working pattern not because she was a woman, per se, but because she was a mother of young children. I am satisfied that the unilateral removal of this arrangement by the respondent amounts to a prima facie case of indirect discrimination contrary to the Acts. I note that section 31(5) of the Acts provides in effect that where a requirement on an employee is to be regarded as discriminating against that employee on grounds of marital status or family status and also as discriminating against that employee of grounds of gender, a finding of discrimination can only be made on grounds of gender and I therefore find that the behaviour of the respondent amounts to indirect discrimination of the complainant on grounds of gender.
5.6 Section 22(1) of the Acts provides a defence to the respondent if he can demonstrate that his actions were objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The respondent states that the reason he decided to remove the working arrangement from the complainant was because he was of the view that she was not completing the tasks at home she was employed to do. In support of his contention that there were issues with the complainant's performance and behaviour the respondent cited her failure to follow his instructions concerning the setting of appointments for another dentist in the practice. As stated above the evidence adduced by the respondent fails to support this contention. In addition, I am not satisfied that the evidence adduced in support of the contention that she was failing to perform the tasks she was employed to do is sufficient to demonstrate that assertion. The European and national caselaw about what constitutes objective justification is well established and I do not propose to recite it here. I am satisfied that the respondent gave little or no consideration to any other option by which his dissatisfaction with the complainant's performance etc. could have been addressed and her efficiency improved. I find therefore that the impugned requirement cannot be objectively justified and the complainant was indirectly discriminated against on grounds of gender.
5.7 I must now examine whether or not this less favourable treatment of the complainant entitled her to terminate her employment. From the time the complainant returned to work from maternity leave in early 2003 to April, 2004 she worked two half days from home - Monday afternoons and Thursday mornings and the remaining days she was employed she attended the surgery. This arrangement worked well for several months until the respondent requested the complainant to report to the surgery on Thursday mornings - a request which she complied with. He subsequently (on 24 June, 2004) requested her to attend the surgery on Monday afternoons, thus terminating the arrangement altogether. I note in particular that the parties considered each other friends for many years and that from April, 2005 the relationship between them was at best, a strained one at work and non-existent at a personal level. I am satisfied that the manner in which the respondent behaved towards the complainant was discriminatory and caused her a significant level of distress which led her to believe that she could not continue in that environment. I note that the respondent made no effort to contact the complainant for the duration of her absence on sick leave and merely accepted her resignation and put the necessary mechanism in motion for the termination paperwork. I find that these circumstances provided reasonable grounds upon which the complainant could terminate her employment with Dr. Reynolds. Consequently, the circumstances in which the complainant's employment ceased can be classified as a dismissal within the meaning of section 2(1) of the Acts.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I find that -
(i) the complaint was referred within the timelimit prescribed at section 77 of the Employment Equality Acts, 1998 and 2004 and this Tribunal has jurisdiction to investigate it;
(ii) the complainant was dismissed by the respondent Dr. Reynolds in circumstances amounting to discrimination, on grounds of gender and by reference to her marital status and family status, in terms of section 6 of the Employment Equality Acts, 1998 and 2004, within the meaning of section 2(1) of those Acts and contrary to section 77 of the Acts when she resigned from her employment in February, 2005.
6.2 I must decide the appropriate redress in the circumstances and I have come to the conclusion that compensation is appropriate in this case. I note that whilst the respondent made no effort to contact the complainant during the time she was absent on sick leave, the complainant equally made no effort to reconcile the matter with Dr. Reynolds and any award made must take account of this. I also note that the complainant obtained alternative employment shortly after her dismissal and her financial loss was of the order of €1,250. The complainant however suffered distress as a consequence of the discriminatory treatment. I am also conscious of the need to provide redress which is effective, proportionate and dissuasive. Taking all the circumstances of the case into account I consider it reasonable the redress is measured at €8,000 and in accordance with my powers under section 82 of the Employment Equality Acts, 1998 and 2004 I order that he respondent pay the complainant that amount. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
____________________________
Vivian Jackson
Equality Officer
26 April, 2007