O'Brien
-v-
Cork University Hospital
Claim
1.1. The case concerns a claim by Ms Susan O’Brien that Cork University Hospital directly and indirectly discriminated against her on the grounds of gender and family status contrary to Sections 6(2)(a) and 6(2)(c)of the Employment Equality Acts 1998 to 2004, in not permitting her to retain her existing working hours on promotion.
Background
2.1. The complainant was working for the respondent in the grade of Clinical Nurse Manager 1. In this position, she was availing of flexible working arrangements and was working 30 hours per week. In June 2005, she applied for a 6-month promotional position as Acting Clinical Nurse Manager 2. She stated to the respondent that her availability for the post would also be 30 hours, as she has three children for whom she is the primary carer. She submits that the respondent’s refusal to maintain her flexible working arrangement, or any other arrangement under the Flexible Working Agreement 2001 in the Health sector that would have permitted her to work a similar number of hours, constitutes discrimination on the grounds of gender and family status with regard to conditions of employment pursuant to S. 8(1)(b) and promotion and re-grading pursuant to S. 8(1)(d) of the Employment Equality Acts 1998-2004.
2.2. The Respondent denies discriminating against the complainant in this matter, and submits that the need to fill the position of Acting Clinical Nurse Manager 2 on a full-time basis was necessitated by the operational requirements of the role. The respondent submits that it treated the complainant in a fair and equitable manner at all times.
2.3. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 5 January 2006. A submission was received from the complainant on 6 November 2006. On 18 May 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Gerardine Coyle, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Additional evidence was requested from the complainant on 23 July 2007 and received on 27 July 2007. Additional evidence was requested from the respondent also on 23 July 2007 and received on 3 August 2007. On 14 September 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. A submission was received from the respondent on 24 September 2007, and received on 10 October 2007. A joint hearing of the claim was held on 16 January 2008. The last piece of correspondence relating to the complaint was received on 4 February 2008.
Summary of the Complainant’s Written Submission
3.1 The complainant submits that at the material time, she had worked for the respondent as a Clinical Nurse Manager 1, in the respondent’s Cardiac Intensive Care Unit, for 6 years. She submits she was employed by the respondent on a permanent contract with a weekly working time of 24 hours.
3.2 In June 2005, the complainant applied for a six month temporary contract as Acting Clinical Nurse Manager 2, also in the Cardiac Intensive Care Unit. The working hours for the position were advertised as 39 hours per week.
3.3 The complainant was placed first on a panel of two. When she interviewed for the position, she stated that her availability in terms of working hours would be 30 hours per week. She submits that she was told by the relevant Clinical Nurse Manager 3 that “hours were an issue” and that a reduction from the 39 hours per week was not negotiable.
3.4 The complainant submits that she is a primary carer to three young children and lives a considerable distance from the hospital. She submits that she sought to negotiate a compromise in terms of working hours, but that she did not succeed. She submits that she was told by the respondent that all supervisory positions would have to be performed by the post-holder on a 39 hours/week basis in the first year of appointment.
3.5 The complainant accepted the position, while still seeking a solution to her problems with the working hours requested by the respondent. She submits that at this stage, she involved the INO, who suggested that the complainant could avail of parental leave or flexible working arrangements. She submits that this was refused. She further submits that the respondent’s management alluded that she had “leapfrogged” over her colleagues as Clinical Nurse Manager level, who might have also applied for the position if they had known it was available on a flexible working basis with reduced hours.
3.6 The complainant submits that the position was taken away from her at an unspecified date and that the duties of the position were distributed among the five remaining Clinical Nurse Managers, giving each of them responsibility for aspects of the position without additional pay. The complainant submits that this development was humiliating and embarrassing for her.
3.7 The complainant further submits that from August 2002 to September 2003, another Clinical Nurse Manager covered an Acting Clinical Nurse Manager 2 post with a working time of 30 hours a week and without incident. She submits that full time attendance is not an essential requirement for an acting CNM2 position. She submits that the respondent never gave any explanation for not granting her the working hours she was seeking, and that the respondent’s refusal was not objectively justified against precedent established in 2003.
3.8 The complainant submits that she suffered loss of pay, dignity and access to a promotional opportunity as a result of the respondent’s actions, and that she was discriminated against on gender and family status grounds.
Summary of the Respondent’s Written Submission
4.1. The Respondent denies discriminating against the complainant on the grounds of gender or family status.
4.2. The respondent submits that it was the opinion of senior nursing management that in order to establish a presence as the operational manager with the nursing staff and the multi-disciplinary team, the Clinical Nurse Manager 2 should be present on the Unit during core hours at least four days a week.
4.5. The respondent submits that it engaged in discussions with the complainant to identify a compromise that would accommodate both the complainant’s personal needs and the requirements of the position.
4.6. The respondent submits that an agreement had been reached that the complainant would be facilitated with a flexible working time arrangement of 36 hours per week over four days, with a review of the arrangement after two months. The respondent submits that the complainant advised the Nurse Service Manager that she was unwilling to accept this proposal.
4.7. The respondent submits that the terms of the Flexible Working Time Agreement in the Health Service state that “the functioning of these arrangements are subject to the over-riding requirement that there would be no adverse impact on the capacity of health service employers to meet their operation requirements” and that therefore every application will be considered on its own merits.
4.8. The respondent submits that it treated the complainant in a fair and equitable manner at all times as is consistent with the treatment of all requests for flexible working time arrangements within Cork University Hospital.
Conclusions of the Equality Officer
5.1. The issues to decide in this complaint are whether the complainant was discriminated against by not being accommodated with a 30 hour/3 days per week flexible work arrangement for the duration of the acting-up position.
5.2. The complainant’s representative confirmed in oral evidence that the respondent had offered the complainant a 36 hour week over four days, but that the complainant had been seeking a 36 hour week over three days, or preferably, a 30 hour week over three days.
5.3. In the course of the hearing, the respondent provided general evidence on the operation of the cardiac intensive care unit which was not challenged by the complainant.
5.4. Nursing staff in the unit are 33 full-time equivalent posts (FTE), total staff numbers are between 44 and 45, of which 80% are on flexible working hours between 19 ½ and 36 hours per week.
5.5. The unit has six patient beds, with one qualified staff nurse allocated to each patient. At the time the complaint arose, the unit had 4 nurses in the Clinical Nurse Manager 1 (CNM1) grade, of which the complainant was one. The role of the CNM1 is to oversee the care given by the staff nurses. The staff work in 12-hour shifts and rotate frequently. Most staff work 36 hours over three days per week.
5.7. The Clinical Nurse Manager 3 (CNM3) was a new role introduced in 2001 to deal with strategic issues, including future staff development, service planning and budgeting and to represent the unit at divisional meetings.
5.8. The respondent stated in evidence that post holder of the CMN3 position was appointed to this position on promotion in 2001, at which time she was availing of parental leave of 5 hours per week. On her return from maternity leave in 2002, she was accommodated with flexible working hours of 30 hours per week over a four-day period.
5.11. The complainant clarified in her oral evidence that the split in duties of the CNM2 post worked as follows: one person was given staff orientation duties; one person was given documentation duties; one person was given human resources duties; one person was given materials management duties; and one person was given data collection duties.
5.12. The complainant further stated that her colleague, Ms R., who had previously worked in the CNM2 position on a 30 per week flexible working arrangement had had the exact same duties, in the same post as the complainant competed for, and had worked 19 ½ hours per week before working in the CNM2 post for 30 hours per week.
5.13. The complainant further stated that Ms R. was very diligent and always worked over and above what was necessary. In the opinion of the complainant, the “time back in bulk” that the respondent referred to in their written submission (see para 4.3 above) would have included times of study leave and would not have been occasioned solely by working overtime. I note in this context that Ms R. was not present at the hearing, and therefore it was not possible to question her on this matter.
5.14. Regarding the meeting with all staff in the unit that the respondent refer to in their written submission (see para 4.4 above), in which it was explained that a review had taken place and that it had been found that the post of CNM2 could not be carried out on a reduced hours basis, the complainant submitted that she was on maternity leave when that meeting took place and that her colleagues did not mention it to her on her return.
5.15. The complainant also stated that she had been working in the Cardiac Intensive Care unit since 1994.
5.16. The complainant’s representative stated in evidence that the advertisement for the position did not state specific working hours, and submitted the advertisement in evidence. However, the ad refers to a longer job description available on request, and in this job description, which was also submitted in evidence, the position is described as a full-time position.
5.17. Ms C., the previous holder of the CNM2 position, whose temporary move to another position had been the reason for the position becoming vacant on an acting-up basis (prior to the restructuring to shiftleader posts as described in paras 5.9 and 5.10 above), was a witness for the respondent at the hearing and stated in oral evidence that in her view, it was not possible to fulfil the duties of the CNM2 post, as it was structured then, on a part-time basis.
5.18. The respondent’s representative stated in oral evidence that the rationale why Cork University Hospital demanded that all promotional posts are worked full-time in the first year of appointment were the orientation of the newly promoted post-holder in the post; establishing a presence in the post, and the development needs of the post-holder.
5.21. To summarise: The respondent insisted that their policy of requesting one year of full-time work on promotion is justified due to the development needs of the newly promoted postholder, and to establish a presence in the promotional position; and that the CNM2 post at the centre of the dispute could not be filled on a part-time basis. However, the respondent also submitted in oral evidence that the CMN3 effectively did just that, when she looked after the tasks of the CNM2 post while working 30 hours per week in a CNM3 position, until the duties of the position were re-organised.
5.22. The Labour Court, in NBK Designs v. Marie Inoue [EED0212], cites Hamilton CJ in Nathan v. Bailey Gibson [1998 IR 162], who held that
A requirement relating to employment or membership of a body which is not an essential requirement for such employment or membership and in respect of which the proportion of persons of the other sex, or (as the case may be) of a different marital status but of the same sex able to comply is substantially higher may amount to indirect discrimination even when a person is obliged to comply therewith for reasons other than a person’s sex or marital status.
5.23. The Labour Court went on to find in Inoue that an abolition of a part-time position will disproportionally affect women, in particular women with child-caring responsibilities, and found that S. 22(1)(b) of the Employment Equality Act 1998 was engaged. It also found that the appellant’s requirement of the respondent to work full-time amounted to prima facie indirect discrimination of the respondent. The burden of proof therefore shifted to the appellant, who had to prove that the abolition of Ms Inoue’s part-time position was both necessary and objectively justified.
5.24. Indirect discrimination is defined in S. 22 and 31 of the Acts as an apparently neutral provision puts persons at a particular disadvantage in respect of any matter other than remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
5.25. Following Inoue, I find that the respondent’s overall policy of requesting staff to take up promotional positions on a full-time basis does raise a prima facie case of discrimination, since this policy makes it more difficult for women and persons with family status to achieve promotion in the organisation.
5.26. I shall therefore have to examine whether the respondent’s policy was objectively justified, and whether the means to achieve the objective were appropriate and necessary. In so doing I shall take into account efforts made by the respondent to accommodate the complainant’s request to some degree.
5.27. I find from the evidence before me that the respondent’s argument passes the first limb of the test, that is, whether the aim of the policy is objectively justified. The general rationale provided by the respondent, that working full-time for one year on promotion serves the establishment of the post-holder in the post, as well as the development needs of the postholder, is an aim that is objectively justifiable, in particular where the promotion is permanent, and where the postholder is transferred to a different unit or division on promotion.
5.28. However, as is implicitly acknowledged in the respondent’s own policy (see paras 5.19 and 5.20 above), it may not always be necessary or appropriate to the individual worker’s situation to apply this policy rigidly. The second limb of the test therefore, the issue of necessity, depends on the nature of the job and whether the respondent is justified in insisting on the presence of the job-holder in the workplace on four days of the week.
5.29. The respondent offered the complainant a working arrangement of 36 hours per week over four days, which the complainant rejected as she would have preferred a flexible working arrangement over three days.
5.30. When the position remained unfilled, the duties associated with it were looked after by the CNM3, in addition to her own work, on a 30 hours/4 days per week part-time arrangement.
5.31. In light of the fact that the main responsibilities for the smooth operation of nursing care in an intensive care unit attached to the CNM2 at the material time (see also para 5.6 above), I find that the respondent makes a case for the necessity of the presence of the jobholder in the unit. The smooth and seamless provision of critical nursing care in a unit such as Cardiac Intensive Care is obviously of utmost importance, and the CNM2 as the organisational manager at the time was responsible for this and by implication, for dealing with exigencies that would arise.
5.32. This is further underlined by the fact that the CNM3 who did take over the duties of the CNM2 when the position went unfilled, did so on the basis of a 30 hour/4 day week, and that subsequently, all existing CNM1 nurses, including the complainant, had their positions upgraded to CNM2 shift-leader positions, ensuring even greater presence of CNM2 level personnel in the Unit.
5.33. I therefore find that the respondent:
· Does have an objective justification for its overall policy of requesting staff on promotion to take up their positions full-time for the period of one year;
· Does make a case for the necessity of the CNM2 postholder to be present in the Cardiac Intensive Care Unit for at least 4 days per week at the material time, in light of the duties and responsibilities attaching to the post;
· Did attempt to accommodate the complainant by offering her a part-time position of 36 hours/4 days per week in the acting-up position as CNM2.
Decision
6.1. Accordingly, I find that the respondent has successfully rebutted the complainant’s case of discrimination on the grounds of gender and family status, for not appointing her to the acting-up position of Clinical Nurse Manager 2 on a flexible working time arrangement of 30 hours per week over 3 days pursuant to S. 22(1)(b) and that therefore her complaint fails.
___________________
Stephen Bonnlander
Equality Officer
30 April 2008