FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : HSE MIDLANDS AREA (REPRESENTED BY HSE EMPLOYERS AGENCY) - AND - ZITA SWEENEY (REPRESENTED BY JACK DUNCAN AND CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal under Section 83 of The Employment Equality Act, 1998
BACKGROUND:
2. A Labour Court hearing took place on the 10th September, 2008. The following is the Court's Determination:
DETERMINATION:
The Complainant, Ms Zita Sweeney alleges she was discriminated against by her employer, HSE Dublin/Mid-Leinster, on the gender ground, in contravention of the Employment Equality Acts 1998 and 2004 (the Acts) when the Respondent removed her from her 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.
The matter was investigated by an Equality Officer of the Equality Tribunal who found that Ms Sweeney had not established aprima faciecase of discrimination. Ms Sweeney appealed the decision to this Court.
Facts
The material facts of this case are not seriously in dispute. Those facts, as admitted, or where necessary as found by the Court, can be shortly stated as follows: -
The Complainant is employed by the Respondent as an Emergency Medical Technician (EMT) based in Athlone Ambulance Station. In late January, 2005 following notification of her pregnancy, she was referred to the Occupational Health Service and had two medical reviews. Both indicated that she should not lift or handle patients. She was removed from Ambulance duties and assigned other duties within the HSE but outside of the ambulance service. She performed these duties for a week, found them unsuitable and did not report for work the following week. She was placed on health and safety leave until her maternity leave began.
The Complainant contended that the Respondent’s behaviour in placing her on health and safety leave was premature in that it did not explore the possibility of suitable alternative employment options in her normal working environment. She submitted that this treatment constituted 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 the maternity protection legislation.
Summary of Complainant’s Case:
Mr. Comerford, Solicitor for the Complainant, read into the record the background details of her complaint as reported by the Equality Officer in his decision.
The Complainant stated that when she notified the Respondent’s Chief Ambulance Officer (Mr. M)she was immediately referred to its Occupational Health Service for assessment as a result of her pregnancy. She stated that the opinion of the Occupational Physician following this assessment 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 added that the following day Mr. M removed her from her operational duties and referred her for a further medical examination. She stated 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 position to carry out such duties. The Complainant added that the assessment went on to say that if the Respondent was unable to accommodate her with duties which did not involve moving and handling patients, then health and safety leave would be appropriate.
The Complainant stated that she suggested a number of alternative duties which she might undertake and which she believed were available but Mr. M rejected each of them. She added 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 stated that she was offered alternative duties in Riada House, a care centre for the elderly, where she reported for duty for five days. However, she was concerned that there might be moving and handling duties at Riada House. In the course of a further consultation with Dr. A on 21/22nd May 2005 she was advised that duties at Riada House involving moving and handling patients were unsuitable for her due to her pregnancy and 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 27th May 2005. At that time she was not aware that special arrangements had been made for her to forego these duties. She was subsequently placed on health and safety leave with effect from 9th May, 2005. She submits that this treatment constitutes discrimination of her contrary to the Acts and seeks to rely on the decision inStephenson v FA Wellworth & Companyin support of her contention.
The Complainant stated that she was aware of two EMT colleagues (details supplied) who were permitted to continue working in the ambulance service during their pregnancies. She contended that she was treated differently to these colleagues and that this constitutes discrimination of her contrary to the Acts. She also stated that another female colleague was offered an appointment as an Ambulance Medical Controller while pregnant and stated 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 concluded by submitting that the Respondent had an obligation to provide training to female EMT’s to enable them to take up alternative duties in the ambulance service or in the wider employment of the Respondent during pregnancy.
Summary of Respondent’s Case:
The Respondent rejected the Complainant’s assertion that it discriminated against her and submitted that she had not made a valid claim of discrimination on grounds of gender under the Acts.
The Respondent asserted that an initial medical assessment of the Complainant by the Occupational Health Service on 4th February 2005, found that she was fit for duties, except for heavy lifting, in particular lifting patients on a trolley into an ambulance.
In compliance with its obligations under the Safety, Health and Welfare at Work (Pregnant Employees etc.) Regulations 2000 the Respondent immediately referred her for a risk assessment to re-assess her ability to carry out the full range of duties of an EMT. This was carried out on 7th February 2005 and it was found that in the context of her pregnancy, it was not possible, practicable or reasonable to mitigate or eliminate the risks associated with the job. The following day she was removed her from operational duties in order to safeguard her pregnancy, as there were no suitable alternative jobs within the ambulance service.
Following a further medical review by the Occupational Physician, Dr. A, advised the Respondent that “people moving and handling”, was a significant risk to the Complainant and that she was not in a position to carry out such duties, adding that if the Respondent was unable to accommodate her with work that did not involve this activity, then Health and Safety Leave would be appropriate.
The Complainant herself had made a number of suggestions in relation to alternative work within the Ambulance Service:
-Third person on ambulance
-Patient transport service bus run
-‘Yellow’ ambulance (i.e. with lifting equipment)
-Clerical work at Ambulance Headquarters
-Ambulance Control
-Transport of taxi patientsThe Respondent stated that none of these were considered reasonable, feasible or practical to implement. The Respondent stated that the Complainant was placed on paid leave on 23rd March 2005 while a search for alternative duties within its remit, but outside the ambulance service was conducted.
The Respondent submitted that following consultation with her trade union, suitable alternative duties were identified at Riada House, a Care Centre for the Elderly. The duties consisted of patient care/attendant duties including a brief period of driving. This job was offered to the Complainant without loss of pay and allowances for the duration of the assignment – i.e. until she commenced maternity leave.
The Complainant reported at Riada House on 6th May 2005 to discuss the duties with the Director of Nursing. Following this discussion the Complainant contacted the Occupational Health Service herself and raised concerns regarding the duties, as the job involved lifting and movement of patients. The Respondent submitted that the standard practice is for the relevant manager to submit details of the proposed duties to the Occupational Health Service for review, but that in this case, the Complainant had pre-empted this process by making a self-referral to the Service.
The Respondent modified the full range of duties attached to the post so as to remove those tasks which might prove hazardous to the Complainant, the amended job description was then sent to the Occupational Health Service and the Complainant attended for a medical review on 13th May 2005.
The Complainant was placed on health and safety leave with effect from 9th May 2005 pending the outcome of the assessment.
Dr. A advised that she needed to avoid manual handling and lifting of patients but was otherwise medically fit for other duties and he stated that it may be worthwhile considering work for her in area of driving for Midoc (the GP out of hours service) or perhaps another driving job within the Organisation, however, it transpired that these options were not feasible.
The Respondent advised the Complainant on 18th May 2005 that the Occupational Medical Service had confirmed that there was no risk associated with the assigned duties that would negatively impact on her pregnancy. These duties would encompass some driving duties to provide cover for other drivers while on leave. The Complainant commenced duties on 23rd May until 27th May 2005. She failed to report for duty on 30th May 2005 and on 10th June 2005 she made contact with the Section Officer enquiring about work and was informed the duties at Riada House remained available. She applied for Health and Safety Leave that day and was on such leave with retrospective effect from 9th May 2005 until the commencement of her maternity leave on 19th September 2005.
In summary, the Respondent stated 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 be 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.
The Applicable Law
On the facts of this case the Court must consider if the Respondent discriminated against the Complainant contrary to Section 8 of the Act. The Court of Justice has held that since pregnancy is a uniquely female condition less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender (see decision in Case C-177/88Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941).
Mr. Comerford sought to rely on the decisionStephenson v FA Wellworth & CompanyLimited [1997] N.I. 1993 in support of her contention that the Respondent’s treatment of her constitutes discrimination contrary to the Acts.
The Court notes that this Northern Ireland Court of Appeal case upheld the view that dismissal of a female worker at any time during her pregnancy for absences due to incapacity for work caused by illness resulting from that pregnancy was precluded by the Equal Treatment Directive 76/207/EEC.
Directive 92/85/EC (the Pregnancy Directive) defines the nature and extent of an employer’s duty to a worker who is temporally 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,
The Court does not have jurisdiction for the enforcement of either the Regulations or the Pregnancy Directive. Nonetheless, in deciding whether the Complainant was subjected to less favourable treatment on the grounds of her pregnancy, 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 suffered discrimmination under the Act.
Court's findings
The first duty of the Respondent under Article 5. 1 was, having carried out a risk assessment, which revealed a risk, to take the necessary measures to adjust her working conditions/hours so as to ensure that any exposure to risks is avoided. Thus, given the uncontrolled nature of the work of an EMT and its associated risks in her case, in order to comply with this requirement the Court accepts that the Respondent had to relieve her from carrying out EMT duties.
Article 5. 2 provides that where the adjustment of working conditions cannot reasonably be required on substantiated grounds the employer may consider moving the worker to another job.
The Court must consider whether the Respondent acted reasonably in seeking alternative employment for her having regard to all the circumstances of the particular case. Having carefully examined the evidence the Court is satisfied that the alternatives suggested by the Complainant were not suitable due to a multiplicity of reasons: -
-surplus to requirements
-exposure to same risks
-additional costs involved
-requirement for special Ambulance driving licence
-no authority to offer her employment
-no vacancies
-promotional posts must be applied for
However, the Respondent was in a position to accommodate the Complainant with alternative work without loss of pay or diminution in her conditions of employment for the duration of her pregnancy.
The Court notes that there were ongoing discussions/consultations with her trade union representative at this time when consideration was being given to possible alternative employment opportunities both within the Ambulance Service and in various services within the Midland area.
The Court notes that the Respondent considered the position at Riada House as a suitable alternative employment opportunity due to the following factors: -
-duties (as amended) were deemed safe for her in the context of her pregnancy,
-duties were consistent with her previous work experience as a Care Attendant and her EMT duties,
-there was a vacancy at Riada House, which meant that there were no added costs involved
Based on the evidence given at the hearing, the Court is of the view that the Complainant was not prepared to give the job a chance. She took up duties at Riada House for a period of one week and then decided not to report for work on Monday 30th May 2005 but instead she applied for health and safety leave.
The Complainant explained that her duties that week were driving duties which she had no difficulty with, however, she anticipated that from then on she would be required to carry out Care Assistant duties, requiring lifting and handling of patients and for that reason, decided not to report for duty on 30th May 2005.
Mr. Comerford told the Court that the Complainant was not aware of any modifications having been made to the job description for the position in Riada House, to ensure that there would be no risks attached to the duties involved. He stated that as far as the Complainant was concerned she was being asked to perform duties, which had already been deemed unsuitable by the Occupational Health Service.
The Court notes that by letter dated 18th May 2005, the Chief Ambulance Officer informed her that a suitable alternative job had been identified at Riada House with immediate availability. The letter stated that the Occupational Health Service confirmed that there were no risks associated with this job that would impact negatively on her pregnancy. Furthermore, her trade union representative was informed of the modified job description on 20th May 2005.
The Complainant had also submitted that the Respondent had treated her differently than two other pregnant EMT’s. The Respondent told the Court that these were subjected to the same standard risk assessment, however, in their case the Occupational Medical Service did not reveal risks and they were permitted to remain at work on operational duties during their pregnancies. The Court finds it difficult to understand how the Occupational Medical Service could find such contradictory positions, however, it is not for this Court to question a professional medical finding that there was “a significant risk involved in [the Complainant’s] case and most likely in other cases of this type”. Therefore, the Court finds that the Respondent had no alternative but to remove her from any such risks. By placing her on paid leave with effect from 23rd March 2005 while it considered other options, the Respondent ensured that she suffered no detriment during this time.
Reference was also made to another pregnant EMT who was offered a post as an Emergency Medical Controller and the Complainant submitted that she should similarly have been offered such a position. The Court notes that this occurred on foot of a promotional competition following interview and accordingly accepts that the circumstances were entirely different.
In conclusion, the Court is satisfied that the Respondent complied with its obligations to the Complainant under Directive 92/85/EC.
Determination
In all the circumstances of this case, and for the reasons referred to above, the Court has come to the conclusion that the Respondent did not contravene the Act in temporarily transferring the Complainant to alternative duties at Riada House for the duration of her pregnancy, without loss of pay or conditions of employment or by placing her on Health and Safety Leave for the duration of her pregnancy.
Accordingly, the Court finds that the Respondent did not discriminate against the Complainant contrary to section 8 of the Act, therefore the Court concurs with the findings of the Equality Officer and disallows the appeal.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th October 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.