The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2011
DECISION NO. DEC-E2011-150
PARTIES
Suzanne Millman
(Represented by SIPTU)
AND
Blackrock Medical Services (Cavan) Limited
t/a Dial-A-Medic (in liquidation)
Liquidator Paul Burke
(Represented by Donna Reilly, B.L. instructed by McGuigan Solicitors)
File reference: EE/2008/607
Date of issue: 17 August 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 & 8 - Gender - Access to Employment - Conditions of Employment
1. DISPUTE
1.1. This dispute concerns a claim by Ms Suzanne Millman that she was discriminated against by Blackrock Medical Services (Cavan) Limited t/a Dial-A-Medic on the grounds of gender contrary to section 6 of the Employment Equality Acts in terms of access to employment and conditions of employment in accordance with section 8 of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 10 September 2008 under the Acts. On 15 December 2010, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 20 April 2011.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant started work for the respondent on 7 August 2007 as a Nurse. She submits that she worked 40 hours per week from Monday to Friday and was on call at weekends.
2.2. The complainant submits that on 30 November 2007 she informed the respondent she was pregnant. As no member of senior management was available she told the acting Manager. The complainant submits there were a number of occasions when her condition was not taken into account by the respondent:
- on 4 December 2007 she was asked to escort an excessively obese lady from Monaghan Hospital to the Mater Hospital who had to be manually transferred to the ambulance,
- on 18 January 2008 she was requested to transfer a lady from Cavan General to Monaghan General Hospital who had diarrhoea and vomiting,
- on 8 February 2008 the complainant started work at 8.30am and had delivered a patient from Cavan General Hospital to Drogheda and was going for a break when she got a call from Mr A that a patient had to be transferred from Monaghan to Castleross Nursing Home. The complainant said she needed some lunch and the manager roared at her that the transfer had to be done immediately.
2.3. On 20 January 2008 the complainant submits the Health & Safety Officer (Mr A) discussed her pregnancy in front of two colleagues. Later that week the Managing Director (Ms B) returned to work and said she had not been told that the complainant was pregnant.
2.4. The complainant submits that she had ante-natal appointments on 23 January and 21 February 2008 and was docked 8 hours each day.
2.5. On 8 February 2008 the complainant asked Mr A for a meeting to address her Health and Safety concerns. Later that evening the complainant submits that she and a colleague were summoned to a meeting with Mr A, Ms B and the Accountant (Ms C) and were both chastised about the dispute over breaks. They were told that it was not unreasonable to miss lunch and they could eat on route. The complainant was told she could have her meeting now but she said she was not prepared. Ms C said she was not entitled to maternity leave pay from the company. The complainant said she was not expecting it. She was also told that the company was in trouble and there might be redundancies for anyone with less than 2 years service
2.6. The complainant submits that on 11 February 2008 Ms B issued her with written terms and conditions of employment and she was told she should sign and return the document before a general meeting the next day. The complainant signed but did so unwillingly. The next day she reported for work but was sent on a job to Dublin and missed the meeting. She later found out that Blackrock Ambulance Service had taken over the company but had retained the existing management structure. She met the new owner and was introduced as 'the girl that is pregnant'. They had a discussion and the new owner said 'leave it with me' and he would look into creating a new position for her.
2.7. The complainant submits that on 26 February 2008 Ms A instructed them to collect a patient from Cavan and transfer them to Dublin. She was told by nursing staff that the patient had MRSA so she telephoned management and was told that she should not be concerned. The complainant asked for permission to swap duties. That evening she was confronted by Mr A who told her that "we have a business to run" and she was asked to think about her job. He also said there was no alternative employment for the complainant.
2.8. On 17 March 2008 the complainant submits that she telephoned Ms B for her hours and was told there was no work for her the next day. The complainant went into work on 20 March and was asked why she was in by Ms B, who said she had told the complainant she would ring her when there was work for her. She was told to finish the stock take and go home at lunch time. Later she went to see Mr A and was asked what she was doing at work. She was told that it was too risky to send her out in an ambulance and that the company was not obliged to have her in at all. On 21, 26 & 27 March no work was available. From 31 March she worked a full week.
2.9. The complainant started work earlier than usual on 2 April 2008 to allow her to attend a medical appointment with the respondent's doctor at 5.10pm and was on the way back to base when Ms B told them to pick up a patient. The patient was not ready and this delay led to her missing her medical appointment. The complainant submits she had to take a whole day off work to attend the re-scheduled medical assessment on 8 April 2008. She was told by the doctor that she was physically healthy but should avoid lifting patients and having contact with infected patients. He said he would send on his report to the respondent. On 14 April 2008 the complainant had a meeting with Ms B and Mr A. She gave them a synopsis of the doctor's assessment and told them he recommended that a risk assessment be carried out. Mr A said he had one done over the weekend and the findings were that the complainant was unsuitable to do her job in her current state. He then said the company was too liable if any harm was to come to her. She was given until 18 April to make a decision regarding health and safety leave. The complainant asked for a copy of the risk assessment and she was told that it was not written down but she would be given a copy. The complainant submits she never received a copy of the risk assessment.
2.10. On 18 April 2008 the complainant again asked for a copy of the risk assessment and Mr A got difficult and said he did not have to give the complainant a copy. During a previous meeting alternative employment in Galway had been mentioned but the complainant declined this because of the location.
2.11. The complainant submits that she was treated less favourably than colleagues when her hours were reduced because she was pregnant, she was not afforded time off for medical appointments, she was told not to come to work and to wait for management to ring her about hours of work and she was not given a copy of the risk assessment. She went on Health and Safety leave on 9 May 2008. Also, after she went on leave, management had several meetings with staff but did not tell the complainant what was going on. In July 2008 she did receive a copy of the health assessment but she never received a copy of the risk assessment.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that it was in the ambulance provider sector and was in significant financial difficulty at the time of the alleged incidents. The company went into liquidation on 30 October 2008. This submission was compiled after the respondent went into liquidation and with the assistance of Mr A and Ms C. Mr A claims that he was never employed by the respondent. He was formerly a Director and gave advice on HR matters.
3.2. The respondent submits that the complainant was employed as a nurse from 7 August 2007. The respondent submits that the complainant must show she was treated less favourably than someone who was not pregnant.
3.3. The respondent submits that the complainant did not work a 40 hour week. She was employed on an as-needed basis. Furthermore, the complainant was facilitated where possible and allowed to avoid work which may possibly affect her during her pregnancy.
3.4. In relation to the incident on 4 December 2007 Mr A took the call to arrange the transport but was not told that the patient was obese. When the complainant told him he rang the hospital and asked that the porters at the hospital transfer the patient. On 18 January 2008 Mr A was unaware of the condition of the patient and was therefore unable to take any steps to avoid the risk to the complainant.
3.5. Mr A denies that he discussed the complainant's condition in front of other employees.
3.6. The respondent submits that on 23 January and 21 February 2008 the complainant was not scheduled to work. She had signed no particular contract to guarantee hours and worked on a casual part time basis.#
3.7. Regarding the incident on 8 February 2008 the respondent denied that the complainant did not have breaks. It is customary practice to take breaks in between assignments and there is sufficient time to facilitate proper breaks.
3.8. The respondent submits that at the meeting on 8 February 2008 there was a representative from prospective buyers present. The complainant was offered the opportunity to have another independent person present.
3.9. The respondent denied that the complainant was pressurised to sign a contract on 11 February 2008. They also deny that on 26 February 2008 the complainant was introduced as the girl who is pregnant. Any reference would have been to notify and inform the prospective purchasers of the respondent company. The complainant was consulted as to the best options to protect herself and the following steps were taken:
The complainant was taken off "on call work",
The respondent did not put her on duties on her own in an ambulance,
A risk assessment was conducted, but not written,
The complainant attended the company doctor on 8 April 2008.
3.10. The respondent denies that the complainant ever requested a copy of her risk assessment or medical reports.
3.11. The respondent submits that no administrative work was available or any other less physically demanding work. On 17 April the complainant went on Health and Safety leave because no alternative employment was available. In fact it was unreasonable, impractical or unfeasible to source the complainant with alternative employment and the respondent relied on Equality Tribunal Decision, DEC-E2008-006, Zita Sweeney v HSE Midland Area. The respondent submits that they left the employment open to the complainant.
3.12. The respondent denies that the complainant's hours were reduced. Her hours remained fairly consistent. The working hours of the employees were reduced because of the lack of financial viability of the company. Everyone's hours were reduced in April 2008 and all staff were on minimum hours around June 2008.
3.13. The respondent submits that at all times it had a fully comprehensive safety statement which specifically addressed the requirements and perspective of the pregnant employee.
3.14. The respondent submits that the complainant has failed to demonstrate a prima facie case of discrimination
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was discriminated against in relation to access to employment and conditions of employment. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2. The complainant did not have a written contract of employment until February 2008 and this stated "The company operates a 40-hour working week, over five days, Monday to Friday, you are to be employed on a permanent part-time basis. Work commences with a scheduled call-out." The respondent described the complainant's employment on an "as needed" basis. From the information provided by both parties she worked at least 40 hours nearly every week from the time she started until February 2008. I therefore conclude that the complainant did not work on a casual basis but was a permanent employee.
ACCESS TO EMPLOYMENT
4.3. Access to employment claims relate to cases of recruitment or entry to employment. In this claim the complainant was already working for the respondent and her claims in relation to the time she was working for the respondent whilst pregnant are being considered in the claim in relation to conditions of employment. I therefore find that the complainant has failed to provide a prima facie case in relation to access to employment.
CONDITIONS OF EMPLOYMENT
4.4. The complainant contends that the respondent discriminated against her in relation to her conditions of employment after she informed them she was pregnant. The allegations fall into the following areas; working conditions, medical appointments, carrying out a risk assessment and assessing her suitability for her job and looking at alternative employment.
4.5. In a line of authorities, starting with Dekker v. Stichting Vormingscentrum voor jonge Volwassen (VJV-Centrum) [1991] IRLR 27 the ECJ has made it clear that, since pregnancy is a uniquely female condition, any adverse treatment afforded to a woman in consequence of her pregnancy constitutes direct discrimination on grounds of her gender. Furthermore, it is clear that the complainant's pregnancy need not be the only or the dominant reason for the impugned treatment. It is sufficient if it is anything other than a trivial influence for what is complained of (see dictum of Peter Gibson LJ in Wong v Igen Ltd and others [2005] IRLR 258).
4.6. S.I. No. 218 of 2000 transposed into Irish Law EU Directive 92/85/EC and section 4 provides: "it shall be the duty of every employer-
(a) to assess any risk to the safety or health of employees, and any possible effect on the pregnancy of, or breastfeeding by, employees, resulting from any activity at that employer's place of work likely to involve a risk of exposure to any agent, process or working condition 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 preventive and protective measures necessary to ensure the safety and health of such employees and to avoid any possible effect on such pregnancy or breastfeeding,
(b) without prejudice to paragraph (a) and the provisions of the Safety, Health and Welfare at Work (Chemical Agents) Regulations, 1994 ( S.I. No. 445 of 1994 ), and to the occupational exposure limits laid down in any approved code of practice referred to in the said Regulations to --
(i) assess any risk to safety or health likely to arise from exposure of a pregnant employee to an agent or working condition listed in Part A of Schedule 2, resulting from any activity at that employer's place of work, and to ensure that such employee is not required to perform duties for which the assessment reveals such risk.
(ii) assess any risk to safety or health likely to arise from exposure of an employee who is breastfeeding to an agent or working condition listed in Part B of Schedule 2, resulting from any activity at that employer's place of work and to ensure that such employee is not required to perform duties for which the assessment reveals such risk.
(c) where the risk assessment carried out under paragraphs (a) and (b) reveals a risk to an employee's safety or health, or any possible effect on the pregnancy or breastfeeding of an employee, and it is not practicable to ensure the safety or health of such employee through protective or preventive measures, to adjust temporarily the working conditions or the working hours (or both) of the employee concerned so that exposure to such risk is avoided.
(d) in cases in which the adjustment of working conditions or working hours (or both), referred to in paragraph (c), is not technically or objectively feasible (or both), or cannot reasonably be required on duly substantiated grounds, to 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 or breastfeeding by, such employee."
4.7. The complainant informed the respondent on 30 November 2007 that she was pregnant. The complainant related four incidents about her working conditions when she considered she was put in an unsafe position because of her pregnancy. The respondent contended that were unaware of the conditions of the patients but made appropriate arrangements when it was brought to their attention. However, it is clear that no efforts were made by the respondent to assess if any particular work was unsuitable for the complainant.
4.8. On 8 February 2008 the complainant asked the respondent for a meeting to address her health and safety concerns but there is no evidence that any steps were taken by the respondent at this time. From 17 - 29 March 2008 no work was given to her because Ms B told her it was too risky to send her out in an ambulance. Then from 31 March 2008 she worked a full week. After the doctor carried out his assessment on 8 April 2008 the complainant met with Mr A and Ms B on 14 April and they said a risk assessment had been carried out and it was unsuitable for her to carry on with her current job. They concluded that there was no suitable alternative work available. The possibility of alternative employment in Galway had been mentioned in February 2008 by the respondent but I conclude that, because of the travel involved, this was not a realistic option for the complainant. The complainant did not work again and went on Health and Safety leave on 18 April 2008.
4.9. The respondent relied upon the Equality Tribunal Decision in Zita Sweeney v HSE Midlands Area, which was upheld in the Labour Court (Determination No. EDA0819) to show that they had complied with S.I. No. 128 of 2000. In that case the respondent carried out a risk assessment as soon as they knew the complainant was pregnant. The assessment revealed a risk and the respondent took the necessary steps to adjust the complainant's working conditions. When this was not possible in her current position she was offered alternative employment. The Labour Court was satisfied that the respondent had fulfilled their obligations and as such no discrimination had taken place.
4.10. The respondent in this claim, by relying on the Sweeney v HSE Midlands Area decision, is contending they went through the same process and acted reasonably, when there was no alternative employment, in putting the complainant on Health and Safety Leave. In the cited case the complainant was referred to the respondent's Occupational Health Service immediately she told them she was pregnant. When a risk was revealed she was taken off her usual duties. This process took place within two weeks. In the instance case no assessment took place for more than four months, from 30 November 2007 until 8 April 2008. Then the complainant was seen by the respondent's doctor who recommended that she avoid lifting patients and having contact with infected patients and that a risk assessment be carried out. However, on the balance of the evidence presented, I conclude that the respondent did not carry out a risk assessment at any time. It appears that they only acted on the doctor's assessment.
4.11. S.I. No. 128 of 2000 puts the onus on an employer to carry out an assessment. Given the nature of the complainant's work I would expect that an assessment would have been carried out shortly after she informed the respondent she was pregnant, as occurred in Sweeney v HSE Midland Area. My investigation has confirmed that in more than four months an assessment was not carried out. It is my view that this lack of an assessment in accordance with S.I. No. 128 of 200 could have put the complainant at risk.
4.12. The respondent did not schedule the complainant to work on two occasions when she had medical appointments. On another occasion, despite starting work earlier than usual, she missed an appointment with the respondent's doctor when a patient was not ready at the appointed time and she was delayed. The Maternity Protection Act, 1994 states that an employee shall be entitled to time off without loss of pay to receive ante-natal care. The respondent made no effort to accommodate the complainant in such a way that she could attend these appointments within her working day. Consequently she missed two day's work and on another occasion missed an appointment because she was delayed at work.
4.13. I conclude that the respondent did not fulfill their statutory obligations but as the Labour Court stated in Limerick City Council and Marie Carroll, ADE/08/2, Determination Number EDA0816 "the Court does not have jurisdiction for the enforcement of either the Regulations or the Pregnancy Directive. Nonetheless, in applying the principle of non-discrimination to the facts of the instant case, the rights of the Complainant and the duty of the Respondent under the whole body of Community law must be taken into account. Article 5 of the Pregnancy Directive, 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 discrimination under the Act."
4.14. In not fulfilling their obligations under S.I. No. 218 of 2000 and the Maternity Protection Act, 1994 I conclude that the respondent failed to provide the necessary protection for the complainant in the course of her work from 30 November 2007 to 8 April 2008 and accordingly she suffered adverse treatment in consequence of her pregnancy. In not carrying out a risk assessment the respondent was unable to identify the risks associated with the complainant's work from the time she informed them she was pregnant. Therefore they made no effort to assess whether the complainant's working conditions could have been adjusted to avoid any risks that had been identified. They concluded, in April, after the doctor's assessment that it was not appropriate for the complainant to continue in her role and in the absence of any suitable employment they told the complainant that her only option was to go on Health and Safety
Leave.
4.15. The failure to carry out the assessment soon after she informed them she was pregnant and the refusal to give the complainant time off for ante-natal care appointments means the complainant was disadvantaged because she was pregnant and this amounts to discrimination in relation to her conditions of employment on the grounds of gender.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts:
that the respondent did not discriminate against the complainant in relation to access to employment, and
that the respondent did discriminate against the respondent in relation to her conditions of employment.
I order the respondent to pay the complainant €5,000 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
____________________
Hugh Lonsdale
Equality Officer
17 August 2011