FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : LW ASSOCIATES LIMITED (REPRESENTED BY GORE & GRIMES' SOLICITORS) - AND - LISA LACEY (REPRESENTED BY REIDY STAFFORD, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner's Decision R-055579-HS-07/DI
BACKGROUND:
2. The Worker was employed as an Office Manager in the Company from 5th December, 2005 to 20th July, 2007 when she resigned. The case refers to the manner in which she was treated by her Employer which she claims was in contravention of Section 27 of the Health, Safety and Welfare at Work Act, 2005, (the Act). The Worker supplied details of her complaints to the Court.
- The Worker referred her case to a Rights Commissioner whose Decision was as follows:
"Having carefully considered the submissions made by both parties, I do not find that the Claimant was penalised as a consequence of raising matters regarding her health and safety.
While I believe that this complaint may not have been made if there had been more transparency surrounding the risk assessment process and if the communication between the parties had been better, the decision to place the claimant on Health and Safety leave did not result in her being penalised. The decision to place the claimant on Health and Safety leave resulted from her position that she was incapable of performing the physical activities associated with her role. I am also satisfied that suitable alternative employment or alternative arrangements were not available.
I find the complaint that the respondent was in breach of Section 27 of the Act not to be well founded".
The Worker appealed the Decision to the Labour Court on the 20th February, 2008, in accordance with Section 29(1) of the Health, Safety and Welfare at Work Act, 2005. A Labour Court hearing took place on the 15th May, 2008. The following is the Court's Determination:
DETERMINATION:
This is a complaint by Ms. Lisa Lacey (the Complainant) alleging that her former employer, LW Associates Limited (the Respondent) penalised her in contravention of Section 27 of the Safety Health and Welfare at Work Act 2005 (the Act).
The complaint was investigated by a Rights Commissioner who found that it was not well-founded. The Complainant appealed to this Court.
The substance of the Complainant’s claim is that she was laid off directly as a result of her pregnancy without any proper risk assessment and without regard to the provisions of the Act or the Safety Health and Welfare at Work (Pregnant Employees) Regulations2000, (the Regulations).
Summary of the Complainant’s case
Mr. Andrew Cody, Solicitor for the Complainant, contended that the Respondent’s failure to carry out any proper risk assessment and failure to carry out their duties under the Act amounted to penalisation. He held the view that she had in effect been suspended from her employment without any proper risk assessment or consultation.
The Complainant told the Court that she notified management of her pregnancy on 6th May 2007. At a meeting on 8th June 2007, she sought a risk assessment to be carried out on her job; the Respondent agreed to do so. The risk assessment was carried out on 12th of June and it emerged during the course of the evidence that it had been furnished to Management on 14th June 2007. Because the person who had conducted the assessment was away on holidays the employer decided not to discuss the matter with the Complainant until the assessor returned from holidays. This decision was not communicated to the Complainant.
Frustrated at the delay in receiving a response to her request for a risk assessment, on 19th June 2007, she raised a formal written grievance with the Respondent. This stated that she was dissatisfied that, despite numerous requests, she had not received any support in relation to the physical aspects of her employment. She sought a meeting to discuss the matter and to be accompanied by her trade union official.
At the meeting which took place on the same day, 19th June 2007, her manager informed her that she was being placed on immediate paid leave until a decision was made based on the risk assessment. He did not inform her of the reason for the delay in processing the risk assessment. On 22nd June 2007 she received written correspondence from the Managing Director (MD) stating that as she was unable to manage the physical aspects of her job he had no option but to place her on Health and Safety leave.
Her Solicitors wrote to the Respondent on 11th July 2007 stating that they had received instructions from her that she had been discriminated against in breach of the Act. By letter dated 13th July 2007, the Complainant resigned from her employment.
Mr. Cody submitted that, under the provisions of the Act, the Respondent owed the following duties to the Complainant:
(a) The Respondent had a duty to consult the Complainant for the purposes of making and maintaining health and safety arrangements and, as far as practicable, “to
- take account of any representation made by his employees”. The right of the employees to make representations was made explicit and the Complainant was denied any right to make representations on the risk assessment.
(b) Every employer had to prepare a safety statement in writing setting out how the health and safety needs of employees would be secured based on risk assessment. To the knowledge of the Complainant, no risk assessment was carried out.
(c) The Act required the Complainant to be furnished with information on the hazards to health and safety and the risks identified by risk assessment. The Complainant was not furnished with any such details.
(d) A competent person should be appointed by the employer to carry out the measures necessary to ensure the employees' health and safety. That person must have access to the risk assessment required by Section 19 of the Act and, in so far as the Complainant was aware, no such competent person was appointed and no assessment carried out.
Mr. Cody also submitted that the Regulations require an employer to conduct a risk assessment of the workplace in relation to women who are pregnant. If a risk is established, then the employer must put in place measures to remove the risk, and if it is not possible for the employer to do this, then the employee must be granted suitable alternative work. If it is not possible for the employer to transfer the employee to suitable alternative work or the work to which the employee is being transferred is not suitable for her, then she must be granted Health and Safety Leave.
Mr. Cody submitted that it was clear from a plain reading of Section 27 (3) of the Act that penalisation occurs under the Act when something is done to an employee’s detriment on account of the employee having performed or committed one or more of the acts referred to in the succeeding paragraphs of that subsection. Thus in order to succeed in a cause of action a Complainant must establish not only that he/she suffered a detriment of a type referred to at Subsection (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at Subsection (2).Mr. Cody submitted that the Complainant invoked the Act when she sought to have a risk assessment carried out to ascertain the health and safety risk associated with her job during her pregnancy. When this was not acted upon she submitted a formal grievance to management. At the time the Complainant was unaware that the risk assessment had actually been carried out.
Mr. Cody contended that Management did not properly consider the risk assessment report available to them and instead of considering whether :-
a) she could continue to perform her duties with the assistance of suitable equipment or;
b) alternative suitable employment could be found for her within the organisation
They placed her on Health and Safety Leave, which was the least attractive option both professionally and financially and there by penalised her in breach of Section 27 of the Act.
Summary of the Respondent’s Case
Ms. Rosemary Mallon, B.L., on behalf of the Respondent, denied that the Complainant was penalised and, in fact, she said, that the Respondent did everything they could to protect her and put her health and safety first. She submitted that a failure to carry out the risk assessment or to ignore it would be a serious cause for concern.
Ms. Mallon explained that the Complainant made her first request for assistance in carrying out her duties on 28th February 2007, more than two months before she announced her pregnancy. On 7th March 2007 Management announced that it had appointed a named employee to assist her in her duties, when required.
The Respondent stated that Ms. T was assigned the task of carrying out the risk assessment on 12th June 2007. The Complainant was informed that this would be completed by 20th June 2007.
Ms. T proceeded to interview the Complainant about the tasks involved in her work; she also sought advice from the Health and Safety Authority (HSA) and information on manual handling from the Advanced National Training Services (ANTS).
When the MD received the Complainant’s emailed formal grievance notification, he proceeded to set up a meeting for that same day. In the course of the meeting he indicated that due to Ms. T’s absence he could not proceed to discuss the outcome of the risk assessment but would do so the following day and, in the meantime due to her concerns over the physical nature of her duties, she was being placed on paid leave until the end of the week. He assured her that her employment was not being terminated in any way.
Following a review of the risk assessment he placed her on Health & Safety leave with effect from 19th June 2007. The MD told the Court that when he received the Solicitors letter on 12th July 2007 he telephoned the Complainant that day to suggest an informal meeting to try to resolve the matter. The following day the Complainant resigned from her employment. The resignation letter dated 13th July 2007 stated that she felt that she had been victimised as a result of her pregnancy and that she was able to work but because of her employer’s actions she was left with no alternative but to seek other employment.
The Claim Form under the Act, which was dated 23rd July 2007, stated as follows:
- “My employer was aware that I was pregnant. I requested support in relation to the physical aspects of my employment on the 19th [June] 2007. On the same day I was put on Health and Safety leave for the remainder of my pregnancy. No proper risk assessment was carried out and no help, support or alternatives were considered.”
The Complainant’s Evidence
Ms. Lacey told the Court that she had looked for a risk assessment at a meeting on 8th June 2007 as she was concerned about lifting, repetitive lifting, bending and continuous standing and she had assisted in its preparation which Ms. T carried out into the different elements of her duties. By 19th June 2007 when she had not received any support in relation to the physical aspects of her employment and her requests for help had gone unanswered she submitted a formal grievance to her employer. As a result a meeting was set up for the same day but when she sought to have her trade union representative present she was refused. At the meeting she was informed that she was being placed on Health and Safety Leave with immediate effect against her will.
The Managing Director’s Evidence
Mr. L. told the Court that a risk assessment was carried out on the 12th of June 2007 by Ms. T and he received a copy of the risk assessment on 14th June 2007; however, Ms. T was on holidays and he intended to await her return to work in order that he might discuss the report with her before discussing it with the Complainant. He said that when the Complainant filed a formal grievance notification by email on 19th June 2007, one day before the risk assessment was due, he decided to place her on Health and Safety Leave with immediate effect. He felt that he had no choice as the Complainant had made it clear that due to her pregnancy she was unable to assemble and lift boxes and was therefore not in a position to carry out her duties. Mr. L said there was no suitable alternative work available for her. He told the Court that he had regularly attempted to ascertain the extent of her capability to carry out the various aspects of her duties but without success. He said that events happened so quickly that he had no opportunity to sit down with her informally and discuss the issue. He said that there was a vacancy for a part-time telesales person, however, he decided not to offer her this position as it had a lower salary than the one she was on and he felt that such an offer might therefore be misconstrued as some sort of effort to sideline the Complainant.
Applicable Law
The complaint is grounded on section 27 of the Act, which provides as follows: -27. (1) In this section “penalisation” includes any act or omission by
- an employer or a person acting on behalf of an employer that affects, to his or her
detriment, an employee with respect to any term or condition of his or her
employment.
(2) Without prejudice to the generality of subsection (1), penalisation includes -
(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,
(3) An employer shall not penalise or threaten penalisation against an employee for—
(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,
- (f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.
- an employer or a person acting on behalf of an employer that affects, to his or her
Directive 92/85/EC (the Pregnancy Directive) defines the nature and extent of an employer's duty to a worker who is temporarily unable to carry out the full duties of her employment because of pregnancy. Article 5 of the Directive provides as follows:-
- 1. Without prejudice to Article 6 of Directive 89/391/EEC, if the results of the assessment referred to in Article 4 (1) reveal a risk to the safety or health or an effect on the pregnancy or breast-feeding of a worker within the meaning of Article 2, the employer shall take the necessary measures to ensure that, by temporarily adjusting the working conditions and/or the working hours of the worker concerned, the exposure of that worker to such risks is avoided.2. If the adjustment of her working conditions and/or working hours is not technically and/or objectively feasible, or cannot reasonably be required on duly substantiated grounds, the employer shall take the necessary measures to move the worker concerned to another job.3. If moving her to another job is not technically and/or objectively feasible or cannot reasonably be 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. The provisions of this Article shall apply mutatis mutandis to the case where a worker pursuing an activity which is forbidden pursuant to Article 6 becomes pregnant or starts breast-feeding and informs her employer thereof.
- Assess any risk to the safety or health of employees, and any possible effect on the pregnancy of …employees, resulting from any activity at the employer’s place of work likely to involve a risk of exposure to any agent, process or working conditions and, for that purpose, to determine the nature, degree and duration of any employee’s exposure to any agent process or working condition and to take the preventative and protective measures necessary to ensure the safety and health of such employees and to avoid any possible effect on such pregnancy or breast-feeding,
Where the risk assessment carried out reveals a risk to an employee’s safety or health, or any possible effect on the pregnancy, and it is not practicable to ensure the safety or health of such an employee through protective or preventive measures, the employer is obliged to:
�temporarily adjust the working conditions or the working hours (or both) of the employee concerned so that exposure to such risk is avoided,
-if not technically or objectively feasible, then
�take the measures necessary to provide the employee concerned with other work, which does not present a risk to the safety or health of, or any possible effect on the pregnancy of the employee,-if not technically or objectively feasible, then
�grant the employee Health and Safety Leave.The Court does not have jurisdiction for the enforcement of either the Regulations or the Pregnancy Directive. Nonetheless, in deciding whether the Complainant was penalised, the rights of the Complainant and the duty of the Respondent under Community law must be taken into account. Article 5 of the Pregnancy Directive, together with the transposing domestic legislation, is part of the body of law which defines those rights and duties. Accordingly, while the Court cannot impose any sanction for a breach of the Regulations or the Pregnancy Directive, it must nonetheless take their provisions into account in deciding if the Complainant was penalised under the Act.
Court's findings
The risk assessment carried out by Ms. T found that there was a low to medium risk involved in the Complainant’s duties; further action was required in two areas (moving/lifting of weights and loading trolleys) and found that she required assistance in these areas.
The meeting on 19th June 2007 was an immediate response to the formal grievance submitted by the Complainant and was organised to assess the situation and examine what steps needed to be taken.
By letter dated 19th June 2007, the Union wrote to the Company indicating its understanding that the Complainant’s “suspension arose as a result of our member identifying her SIPTU membership status”. No evidence has been produced to substantiate the Union’s contention that the Respondent’s actions were motivated by her trade union membership. The Court accepts Management’s contention that the Complainant was placed on Health and Safety Leave due to her pregnancy and not because she was a trade union member.
It is clear to the Court that the Complainant had difficulties with some of the duties allocated to her and that this disquiet predated her pregnancy or at least the notification to her employer of her pregnancy.
When she announced her pregnancy she notified Management that she was not prepared to carry out the physical aspects of her job while she was pregnant. It was agreed at a meeting on 8th June 2007 that Management would carry out a risk assessment “within the next two weeks”. At this meeting there were discussions about possible alternative employment, either (i) a MAC Operator position, which the Complainant agreed she was not qualified for, or (ii) an upcoming telesales position, which was paid at a salary level lower than her current salary.
In the circumstances of the Complainant’s pregnancy, when the necessity to avoid certain physical tasks became identified in the risk assessment, the Court accepts that the only prudent action which Management could have taken at the time was either to find alternative employment for the Complainant or place her on Health and Safety Leave until the situation changed or her maternity leave commenced. The Managing Director told the Court that he made a number of enquiries about his legal obligations in such a situation and about the Complainant’s employments rights. He told the Court that he did not offer her the part-time position as he felt that to do so could be construed as a form of penalisation and that in any event she had not sought alternative employment at the time.
Having considered the events of this time, the Court is of the view Management did not pay sufficient attention at the time to the alternatives available to them i.e. suitable alternative work or placement on Health and Safety Leave. It appears to the Court that Management was somewhat frustrated by her consistent complaints and her swift invocation of the formal grievance procedure.
The Court is fully satisfied that the matter was not given due consideration and more extensive exploration of the possible alternatives could have been carried out.
Therefore, the Court is of the view that the precipitous manner in which the decision to place the Complainant on Health and Safety Leave was taken and the absence of any real and considered deliberation of the matter without affording the Complainant the benefit of representation, constitutes penalisation for having invoked the Act and comes within the meaning of Section 27 of the Act. The Court decides that the award of compensation, in all the circumstances of this case should be set at €1,000.00, this sum takes account of her loss of earnings, which amounted to approximately €325.00.
DETERMINATION
The Court overturns the Rights Commissioner’s Decision anddetermines that the Respondent must pay an award of €1000.00 to the Complainant.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
18th July, 2008______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.