EQUALITY OFFICER'S DECISION NO: DEC-E/2008/006
PARTIES
SWEENEY
(REPRESENTED BY JACK DUNCAN - SOLICITORS)
AND
HSE MIDLANDS AREA
(REPRESENTED BY HEALTH SERVICE EMPLOYERS' AGENCY)
1. DISPUTE
This dispute involves a claim by Ms. Zita Sweeney that she was discriminated against by HSE Midlands Area 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 an Emergency Medical Technician, failed to offer her alternative employment within the ambulance service and placed her on health and safety leave shortly after she informed the respondent of her pregnancy in January, 2005.
2. BACKGROUND
2.1 The complainant is employed by the respondent as an Emergency Medical Technician (EMT). In late January, 2005 she advised the respondent's Chief Ambulance Officer that she was pregnant. She was removed from operational duties following medical assessment by the respondent's Occupational Health Service. She was offered alternative duties within the respondent organisation, but outside of the ambulance service. She performed these duties for a week and found them unsuitable. The respondent subsequently placed her on health and safety leave in accordance with the maternity protection legislation. The complainant contends that the respondent's behaviour was premature in that it did not explore any suitable employment alternatives in her normal working environment before offering her alternative duties elsewhere and subsequently placing her on health and safety leave. She 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 it acted in accordance with its obligations under maternity protection legislation.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2004 to the Equality Tribunal on 21 July, 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 April, 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 November, 2007.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is employed by the respondent as an Emergency Medical Technician (EMT) and is based at Athlone Ambulance Station. She states than in late January, 2005 she advised the respondent's Chief Ambulance Officer (Mr. M) that she was pregnant. She adds that she was immediately referred to the respondent's Occupational Health Service for assessment as a result of her pregnancy. She states that the opinion of the Occupational Physician following this assessment (dated 7 February, 2005) was "overall I would not have difficulty with her working as an EMT - however, she would not be fit for heavy lifting, in particular lifting patients on a trolley into an ambulance". She adds that the following day Mr. M removed her from operational duties and she was referred for further medical examination. She states that this assessment (which was conducted by Dr. A - a different Physician to the first one) stated that the level of potential risk to which the complainant could be exposed, particularly as regards moving and handling, was significant and that she was not in a position to carry out such duties. The complainant adds that the assessment went on to say that if the respondent was unable to accommodate her with duties which did not involve this activity, then health and safety leave was appropriate.
3.2 The complainant states that she suggested a number of alternative duties which she might undertake and which she believed were available to Mr. M, but he rejected each of them. She adds that as there were no other alternative duties available within her normal working environment she was placed on leave while a search for alternative duties elsewhere was conducted. The complainant states that she was offered alternatives duties in Riada House, which is a care centre for the elderly, and she reported for duty there for five days. She adds that in the course of a further consultation with Dr. A on 21/22 May, 2005 she was advised that the duties at Riada House were unsuitable for her due to her pregnancy and that he would write to the respondent confirming this. The complainant states that on the basis of Dr. A's opinion on this matter, the last day she reported for duty at Riada House was 27 May, 2005. She was subsequently placed on health and safety leave with effect from 9 May, 2005. She submits that this treatment constitutes discrimination of her contrary to the Acts and seeks to rely on the decision in Stephenson v FA Wellworth & Company (1) in support of her contention.
3.3 The complainant states that she is aware of two EMT colleagues (details supplied) who were permitted to continue working in the ambulance service during their pregnancies. She contends that she was treated differently to these colleagues and that this constitutes discrimination of her contrary to the Acts. She also states that another colleague was offered appointment as an Ambulance Medical Controller and states that such treatment could have been made available to her in the context of alternative duties within the ambulance service during her pregnancy. The complainant concludes by submitting that the respondent has an obligation to provide training to female EMT's to enable them take up alternative duties in the ambulance service or in the wider employment of the respondent during pregnancy.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that it discriminated against her contrary to the Acts. It accepts that the complainant informed Mr. M of her pregnancy in late January, 2005 and was immediately referred to an Occupational Physician for a preliminary opinion on whether or not she could continue her normal duties and that this preliminary opinion was that she could, except for lifting. The respondent accepts that the complainant was removed from operational duties on 8 February, 2005 and was referred for a more detailed medical review, in light of Mr. M (the Chief Ambulance Officer) having identified a number of potential risks to the complainant following a risk assessment. This second medical assessment was carried out by a different Physician (Dr. A) who stated that the level of potential risk to which the complainant could be exposed, particularly as regards moving and handling, was significant and the complainant was not in a position to carry out such duties, adding that if the respondent was unable to accommodate her with duties which did not involve this activity, then health and safety leave was appropriate.
4.2 The respondent states that having regard to Dr. A's opinion it examined alternative duties within the ambulance service in the first instance and following this examination Mr. M decided there were no suitable alternatives duties available. It accepts that the complainant made a number of suggestions as regards alternative duties but none of these were considered reasonable, feasible or practical to implement by Mr. M. The respondent states that the complainant was placed on leave with full pay while a search for alternative duties within the remit of the respondent, but outside the ambulance service, was conducted. The respondent states that suitable alternative duties were identified at Riada House and these were offered to the complainant on the basis that she would receive her full pay and allowances for the duration of the assignment- i.e. until she commenced maternity leave. It adds that the full range of duties attached to the post were modified so as to remove those tasks which might pose hazardous to the complainant, particularly in light of Dr. A's further assessment of the complainant on 13 May, 2005, which reemphasised the need for the complainant to avoid manual handling or lifting. The respondent states that the complainant reported for duty at Riada House from 23 May-27 May, 2005 only. It adds that the complainant made contact with the Section Officer (Ms. X) on 10 June, 2005 enquiring about work and was informed the duties at Riada House remained available. The respondent adds that the complainant applied for health and safety leave that day and was on such leave with effect from 9 May, 2005 until the commencement of her maternity leave.
4.3 The respondent accepts that the two EMT's mentioned by the complainant remained on operational duty for some element of their pregnancies but states that they were permitted to do so on foot of medical opinion following the same assessment process which the complainant underwent. It rejects her assertion that another EMT was offered a post as an Emergency Medical Controller in similar circumstances to the complainant and states that the offer of such a post to that employee was on foot of a promotional competition following interview. In summary, the respondent states that on becoming aware of the complainant's pregnancy it took immediate steps to comply with its obligations as regards the health and safety of pregnant employees under the maternity protection legislation. Once a potential hazard had been identified in respect of the complainant and this hazard could not be removed from her normal working environment, it sought to identify suitable alternative employment. The suggestions made by the complainant in this regard were not considered to by reasonable, practical or feasible to implement and suitable alternative duties, without loss of her usual pay and allowances, were sourced outside of the ambulance service. The complainant refused these duties and applied for health and safety leave under the maternity protection legislation. The respondent submits that its actions were reasonable in the circumstances and could not be considered discriminatory contrary to the Employment Equality Acts, 1998-2004.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not HSE Midlands Area discriminated against Ms. Sweeney 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 an Emergency Medical Technician, failed to offer her alternative employment within the ambulance service and placed her on health and safety leave after she informed the respondent of her pregnancy in January, 2005. I am of the view that a number of issues connected with this complainant fall to be decided under the maternity protection legislation and consequently I have no jurisdiction in those matters. 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(2) 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(3). 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 the 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 advisable for her to continue on the full range of operational duties (as detailed by the medical reports) in the respondent ambulance 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 could include training) 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 The complainant's employer is the HSE Midlands Area. It follows therefore that it is open to the respondent to source alternative duties for a pregnant employee anywhere within that organisation in seeking to source suitable alternative employment for the complainant, in accordance with the maternity protection legislation. The complainant argues that the first port of call in sourcing alternative duties should be her normal working environment. The respondent submitted its Health and Safety Statement with reference to pregnant employees, employees who have recently given birth or who are breastfeeding to this Tribunal. The Statement covers an extensive range of hazards which a pregnant EMT might be exposed to in her routine working day. I note that this Statement was approved by the respondent's Quality and Safety and I am satisfied that it represents a comprehensive overview of the potential hazards to all pregnant EMT's in their working environment. It appears to me that the respondent was endeavouring to comply with this Statement and its obligations under the maternity protection legislation by seeking appropriate medical opinion, once it became aware of the complainant's pregnancy and acting on that advice. It is clear this advice consistently indicated that the complainant should not perform duties involving lifting or manual handling and it follows therefore that she was unable to perform the full range of duties attached to the post of EMT. In those circumstances the maternity protection legislation obliges the respondent to source suitable alternative employment. It is common case that the complainant suggested a number of alternatives within the ambulance service to the respondent and that these proposals were discounted by the respondent as unreasonable, impractical or unfeasible to implement. The complainant asserts that this behaviour constitutes less favourable treatment of her on grounds of gender. 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 ambulance service 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. There was clearly a dispute between the parties as regards the availability/suitability of the alternative duties in the ambulance service suggested by the complainant. 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 It is common case that the respondent sourced alternative duties for the complainant as an Attendant at Riada House, which is a care centre for the elderly. The respondent states that the generic job specification for an Attendant position in Riada House was adjusted by the Occupational Health Division to render it suitable employment for the complainant and that it was these revised duties that were offered to the complainant. The complainant states she never saw this revised job specification and Dr. A advised her that the duties she understood the post to entail were unsuitable for her as a result of her pregnancy. Copies of both documents were submitted to this Tribunal and I am satisfied that the complainant's understanding of the situation is perfectly feasible - in that the generic job specification contains tasks involving lifting and manual handling and the revised one did not - and if this was the document given by her to Dr. A he could conceivably arrive at the opinion that the duties were not suitable for the complainant. However, I note that during the five days the complainant reported for duty at Riada House she was not asked to perform such duties. It appears to me that there was considerable confusion between the parties as to what exactly the post entailed and that neither party sought to clarify the position before decisions were made. Whilst such confusion is regrettable, I cannot hold that the respondent's actions were unlawful in terms of the Employment Equality Acts, 1998-2004. It appears to me that the respondent was seeking to comply with its obligations under maternity protection legislation by sourcing alternative employment in an area outside the ambulance service - which is open to it - and which from its perspective, having regard to medical opinion, did not pose a risk to the complainant or her baby. I note that the complainant would have suffered no financial loss had she availed of the post in Riada House and that the post remained available to her on those terms for some weeks after she commenced health and safety leave. It appears to me that once the respondent could (i) not permit the complainant to remain in her normal job following the initial risk assessment (having regard to her pregnancy) and (ii) suitable alternative employment could not be agreed between it and the complainant, the only option available to it, in order to comply with its obligations under maternity protection legislation, was to grant the complainant health and safety leave. It follows therefore that in seeking to comply with these obligations 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 complainant cites the case of FA Wellworth & Company(4) in support of her contention that the respondent discriminated against her. In that case the respondent made a unilateral decision to prevent the complainant returning to work during pregnancy unless she received medical certification that she could perform all of the duties associated with her job. That was not the situation in the instant case as the respondent made efforts to accommodate the complainant's return to alternative duties, but this could not be achieved in a mutually agreeable manner. I therefore consider the case cited to have little, if any, relevance to my deliberations. Before leaving this point I wish to address the matter of the clear confusion which surrounded the nature of the alternative duties attached to the post at Riada House. It appears to me that there was no clear line of dialogue between Management in the ambulance service, Management at Riada House, Occupational Health and Human Resources, all of whom had a role to play in the matter and that this shortfall contributed significantly to the situation. I would suggest that the respondent introduce, if it has not already done so, a mechanism to ensure that one person assumes responsibility for the offer, nature and circumstances surrounding alternative duties in connection with pregnant employees, in order to reduce the prospect of a recurrence of the events experienced by the complainant.
5.6 The complainant contends that she was treated differently than two colleagues who were permitted to remain at work during their pregnancies. Details of these personnel were furnished to the Tribunal. Having examined all of the evidence submitted by the respondent on this issue, I am satisfied that these employees were subjected to the same risk analysis and medical assessment as the complainant. However, I note that both were assessed by different Occupational Physicians in the respondent Occupational Health Service and that those Physicians were different to the Physician who assessed the complainant. I also note that in both cases involving these comparators the Physician in question opined that s/he was satisfied to allow them continue in their roles as EMT's. This was not the case with the complainant. Different medical opinions cannot, of themselves, ground a claim of less favourable treatment, particularly when the respondent acted in accordance with the opinion in each case. The complainant also asserts that another colleague (Ms. Z) was offered a post as an Emergency Medical Controller (EMC) and that such work could have been offered to her. Again, having examined the evidence submitted by the respondent I am satisfied that the offer of the role of EMC to Ms. Z was made on foot of a formal competition, including interview, which she participated in and was not in response to a request for alternative duties due to risks associated with pregnancy. In light of my comments in the preceding paragraphs I find that the complainant has failed to establish a prima facie case of discrimination on grounds of gender and her claim must therefore fail.
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 -2004 and contrary to section 8 of those Acts and her complaint must therefore fail.
____________________________
Vivian Jackson
Equality Officer
18 February, 2008
footnotes
(1) [1997] N.I. 93
(2) Council Directive 92/85/EEC
(3) SI No. 446 of 1994
(4) [1997] N.I. 93