THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 201
PARTIES
Ms Ann McDonnell
(represented by Mr John Curran, B.L., instructed by Peter D. Jones, Solicitors)
and
Minister for Justice, Equality and Law Reform
(represented by Mr Stephen Dodd, B.L., instructed by the Chief State Solicitors Office)
File Reference: EE/2007/206
Date of Issue: 27th October 2011
Table of Contents
Claim 3
Summary of the Complainant's Written Submission 3
Summary of the Respondent's Written Submission 5
Conclusions of the Equality Officer 7
Marital Status Complaint 7
Direct Discrimination Complaint 8
Indirect Discrimination Complaint 8
Victimisation 14
Decision 16
1. Claim
1.1. The case concerns a claim by Ms Ann McDonnell that the Irish Prison Service, an organisation under the aegis of the Minister for Justice, Equality and Law Reform, discriminated against her on the grounds of gender, marital status and family status contrary to Sections 6(2)(a), (b) and (c) of the Employment Equality Acts 1998 to 2008, in terms of conscripting her to a level of overtime under the terms "Proposal for Organisational Change in the Irish Prison Service" which left her unable to fulfil her family responsibilities as a single parent of an underage child, and harassed her by way of disciplinary action when she was unable to report for duty as conscripted, regardless of the fact that the respondent had been made aware of her difficulties.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 1 May 2007. A submission was received from the complainant on 17 September 2008. A submission was received from the respondent on 18 November 2008. On 28 August 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, 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. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 25 May 2010, which due to the complexity of the case had to be adjourned and was concluded on 1 July 2010. Additional evidence and legal submissions were requested from both parties both before and after the hearing of the complaint. The last legal submission relating to the complaint was received on 20 September 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant is a registered nurse and works as a nursing officer in Castlerea Prison. She has worked in the Irish Prison Service since 1996. She lives in Mullingar and is the single parent of an underage daughter.
2.2. The complainant submits that prior to the introduction of the "Proposal for Organisational Change in the Irish Prison Service" (POC) in 2006, she was just about able to combine her work and family responsibilities, taking account of her 130 mile daily commute between Mullingar and Co. Roscommon. She worked a 12 hour shift and on average a 40 hour week. Because of her responsibilities, the complainant worked a minimum amount of overtime.
2.3. However, with the introduction of the POC in 2006, the complainant submits that she was conscripted into the most time-intensive of the three new overtime bands introduced in the service, this being Band 1, which requires an officer to be available to work 360 additional hours per year, or 15 additional days per quarter. The other bands are Band 2 (240 hours), Band 3 (112 hours) and Band 4 (0 hours). The complainant contends that she reluctantly nominated Band 3 (112 hours) as a possible overtime band, to contribute to the smooth operation of the surgery, but was conscripted to work Band 1 anyway.
2.4. On 21 March 2006, the complainant wrote to the Governor of Castlerea Prison to outline the difficulties she had with working the No 1 Band. But neither the letter nor a meeting with the Governor in June 2006 brought any solution from the complainant's point of view, that is, to be assigned to the No. 3 Band. Representations were made on behalf of the complainant in this matter by the respondent's Staff Welfare Officer.
2.5. The complainant further submits that where an officer does not voluntarily nominate additional days of attendance, the Chief Officer will nominate the relevant number of days per quarter regardless. An officer is then conscripted to work with 14 days' notice. Additional conscriptions can occur with less than one day's notice. The complainant submits that this can greatly upset planned events relating to family life, such as school events. The complainant also contends that this practice has implications on health and safety, as it sometimes allows staff very little recuperation time between shifts.
2.6. The complainant further submits that this occurs less frequently for prison officers, who are predominantly male, than in the surgery due to shortage of staff in the surgery, who are mostly female. According to the complainant, there is very little opportunity for the nursing staff to cooperate in alleviating the consequences of the increased hours requirement due to their low numbers, whereas the male grades are able to make various formal and informal arrangements that significantly reduce the hardship and the stress involved.
2.7. The complainant submits that due to the fact that she was unable to nominate hours, she was subsequently harassed by the imposition of disciplinary sanctions for alleged absenteeism. She has received letters from management requesting explanations for unauthorised absences on conscripted days.
2.8. More recently, the complainant submits that she has been put on the No. 2 Band (240 additional hours) on a temporary basis. However, the complainant contends that the facts as outlined above constitute discrimination and harassment of her on the grounds of gender, marital status and family status.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating against, or harassing the complainant on any of the above grounds.
3.2. The respondent disputes the complainant's statement that she did not work overtime in the years preceding the POC. According to the respondent, the complainant worked the following amount of overtime per year in those years: 2000 - 271 hours; 2001 - 328 hours; 2002 - 105 hours; 2003 - 105 hours; 2004 - 9 hours; 2005 - 12 hours.
3.3. The respondent's submission details the operation of the POC as follows: In dealing with applications from staff for additional hours bands, regard is had to the staff member's seniority and to the operational needs of the institution and the level of cover required in the grade. There is no automatic entitlement to any band. Where there are insufficient volunteers for a band then more junior staff will be appointed to the band in question to ensure that the requisite allocation of hours in the prison is fully distributed. As vacancies arise, staff have an opportunity to change band.
3.4. There are nine nurse officers at Castlerea Prison, all are female, and none of them volunteered for the 360 hours band. Four of the officers are job sharing, leaving 7 full-time equivalent posts. The complainant is second on the seniority list of these officers. The most senior officer is job sharing and, at the time of the respondent's submission in November 2008, had been on sick leave since May 2008. That officer's work sharing partner was on maternity leave at the time of the submission. Accordingly, in November 2008, six full-time equivalent nursing posts in Castlerea Prison were staffed. The allocation of additional hours under the terms of the POC to ensure operation of the surgery is 2,380 hours. Of the seven posts, six have been allocated to the 360 hour band. The respondent acknowledges that while short-term conscription is kept to the minimum possible, sick leave and maternity leave do affect specialised areas such as the surgery.
3.5. The respondent submits that like all other officers in the Prison Service who are covered by the POC, the complainant received a lump sum payment for cooperation with the change, and has since been paid 1.8 times for each hour of additional attendance provided. It also points out that the complainant would have an opportunity to apply for work-sharing, but has not availed of this.
3.6. In legal terms, the respondent contends that the complainant's claim is one of indirect discrimination and that it falls to the complainant to provide the relevant statistical data to prove her case. Furthermore, the respondent argues that the objective justification for treating the complainant as described is that due to the difficulty that attached to negotiating and implementing the POC when it was introduced, there is no possibility of putting in place a different regime of rosters or overtime bands.
3.7. With regard to the complainant's complaint of harassment, the respondent submits that the disciplinary code of the Irish Prison Service was not applied to the complainant in a discriminatory manner, and does therefore not amount to harassment of the complainant.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against and harassed on the grounds of gender, marital status and family status within the meaning of the Acts. Her representative argued both direct and indirect discrimination. With regard to the complainant's complaint of harassment, I indicated to the parties in correspondence prior to the hearing that this ought to be more properly investigated as potential victimisation, and gave both parties the opportunity to make written and oral submissions on the complainant's potential victimisation by the respondent.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
Marital Status Complaint
4.3. The complainant's complaint on the ground of marital status is based on the fact that she is a single parent, as opposed to being married, which the complainant understands to mean that she would then have a partner to share in her child-rearing responsibilities. However, the complainant's actual legal status with regard to marriage does not need to be connected at all to her domestic situation. I assured the complainant that I would take note of the fact that she is a single parent in assessing her complaint under the family status ground - something that was also accepted by the respondent - but I do not find that the complainant put forward any case of discrimination on her marital status within the meaning of the Acts. Accordingly, this part of her complaint, whether for direct or indirect discrimination, must fail.
4.4. There is no dispute about the complainant's gender, or the fact that the complainant, as a parent of an underage child, has family status within the meaning of the Acts and I will therefore turn to assess her complaint under these two grounds.
Direct Discrimination Complaint
4.5. A number of witnesses gave evidence on behalf of the complainant at the hearing of the complaint. These were men with and without family status within the meaning of the Acts. However, all of them confirmed that they were subject to the same overtime regimen as the complainant, and all worked the same overtime band as the complainant. The issue of them being treated more favourably on the ground of either gender or family status therefore does not arise, and the complainant's complaint of direct discrimination accordingly must fail. However, the complainant also complains that the respondent's overtime policy discriminates against women and people with family status within the meaning of the Acts. Her complaint therefore is one of indirect discrimination.
Indirect Discrimination Complaint
4.6. Sections 22 and 31 of the Acts define indirect discrimination, whether between persons of different gender, or between other categories of persons, as follows:
Indirect discrimination occurs where an apparently neutral provision puts persons at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to ... unless the provision is objectively justified by a legitimate aim and the means of achieving this aim are appropriate and necessary.
4.7. In the case of the complainant, this means that I have to investigate the question as to whether women or employees with family status are put at a particular disadvantage by the respondent's overtime policy and the manner in which it is implemented, and whether the defence given in the second paragraph, that the respondent is pursuing a legitimate aim, and its means of pursuing it are appropriate and necessary, avails the respondent.
4.8. The version of the respondent's overtime policy which is relevant to the claim on hand is the revised version of July 2005. The development of the respondent's overtime policy was preceded by the appointment of a multidisciplinary team from the Department of Justice, Equality and Law Reform and the Irish Prison Service, which was known as the Staffing and Operations Review Team (SORT). This team examined all tasks that fell to be performed in the Irish Prison Service, and how they could be accomplished without overtime working. The team was also asked to identify the definitive staffing numbers for the each institution or prison within the service, on the basis that normal rostered staff hours were to be used for all tasks identified by the SORT team, plus a small contingency over and above this, for staff leave.
4.9. The balance of hours needed for staff leave, training and miscellaneous requirements would be covered by staff working additional hours over and above the rostered hours. The officers would commit to work a specific number of hours based on various overtime bands, and the Irish Prison Service would pay officers for these hours whether they had been actually rostered to work these hours or not.
4.10. Looking at the basic structure of the policy, it is not in and of itself designed to impact negatively on work-life balance of staff or to discriminate against women or staff with family status. It is theoretically possible to choose to work no overtime, and the introduction to the revised policy states clearly: "The Proposal now provides for an increase in the upper bands of additional hours thereby allowing more staff to apply for the 'zero' band." It is therefore the practical implementation, or "practice" within the meaning of the Acts, of the policy that I will have to examine to see whether it does indirectly discriminate against the complainant.
4.11. It is probably fair to say that the initial implementation of the policy on the part of the respondent was informed by assumptions which also underlie the policy document itself, i.e. that most staff would be keen to work as much overtime as possible. The policy document says on the allocation of overtime bands:
Where there are more applicants than places in a particular band, preference will be given on the basis of seniority. [...] Unsuccessful applicants will be allocated a place in a lower band provided their seniority entitles them to a place in that band.
Where there are insufficient applications for a band, volunteers from a lower band will be sought in the first instance. Where there are insufficient volunteers from a lower band then staff will be appointed to the band on the basis of juniority.
Similarly, the sanction for unauthorised absences during contracted overtime was placement on a lower band or removal from the scheme.
4.12. However, the introduction to the revised scheme quoted above, which talks of a revision of bands to enable more staff to work zero hours overtime, does indicate that these expectations did not come to pass. Furthermore, the governor of the prison in which the complainant worked, Mr G., confirmed in direct evidence that significantly less staff wanted to work overtime than had been expected and that this came as a surprise to management.
4.13. For the complainant's case, it is also important to note that while it is possible for staff to apply to work a certain band, including the zero hours band, the policy as quoted above provided for the appointment of staff to certain overtime bands, whether they had chosen these bands or not.
4.14. The complainant learned through her union of the zero hours band and applied for it in writing. She was refused and then, reluctantly in her words, nominated the 112 hours band. As the complainant explained, in 2004/05, the surgery in the prison in which she worked had sufficient staff and it was possible to do no overtime. The complainant therefore believed that it would be possible to choose a specific band. However, this did not come to pass. As the complainant explained, work in the surgery differed in two important points from the general prison officer service: the prison officers were a much greater number, and found it easier to arrange duties with each other as needed. Secondly, as all nursing officers in the prison were female, there was more leave in terms of maternity leave etc. As a result, all but one nursing officer were conscripted to the 360 hours overtime band when the system became operational in 2006, regardless of the fact that none of them had volunteered for this band. The term "conscription", which was consistently used by both the complainant and the respondent, is used in the Irish Prison Service to denote mandatory duty rosters, and I will retain it in my deliberations on the issue.
4.15. As a result of this conscription, the complainant experienced great difficulties in her family life, of which she gave extensive evidence: As she explained, she had to give three months advance notice for days off, yet her daughter's school would notify her with much less notice about parent-teacher meetings and other school events. The complainant gave an example of a day of a social meeting which she had planned for a year, she could still not be sure whether she would be conscripted to work on that day. On some days, the complainant was conscripted to work with a single day's notice. On other days, the complainant would report for work at 8am, with personal plans for the evening when her shift ended at 7pm, yet would not be able to leave the prison for 24 hours when the night nurse on duty did not show. In such cases, her daughter, whom she dropped off at the childminder at 6:15am and normally collected at 10pm, would stay overnight with the childminder. The complainant stated that she had to resort to Force Majeure leave and uncertified sick leave frequently to meet family demands.
4.16. Under cross-examination, the complainant further stated that where the prison's detail office was not happy with the nominated days of availability, it would change them unilaterally. She stated that it was moot which days an officer indicated to be available under the system, as these could and would be changed by the detail office regardless of expressed preferences.
4.17. When challenged in cross-examination about the fact that she lived in a town 130 kilometres from the prison in which she worked, and that her long daily commute was not within the factors that the respondent could influence or was responsible for in any way, the complainant replied that the difference in her situation before and after the introduction of the overtime system was that previously, overtime was not a contractual obligation that one could be conscripted into against one's will. The complainant insisted that previously, her work rosters, in terms of both hours worked and predictability of work obligations that would arise, allowed her to combine her work and family duties.
4.18. From the complainant's evidence, and following the findings of the Labour Court in NBK Designs Ltd. v. Marie Inoue [EED0212], I am satisfied that the implementation of the respondent's overtime policy did put her at a particular disadvantage because of her family status, and that she has therefore succeeded in establishing a prima facie case that the implementation of the respondent's overtime policy is indirectly discriminatory against employees with family status. I do not find that the complainant has established a prima facie case that her difficulties arose because she was a woman, since a single father in a comparable situation would have found himself faced with very much the same challenges.
4.19. I will therefore proceed to look at whether the defence given in the second paragraph of S. 31 of the Acts, that the respondent is pursuing a legitimate aim, and its means of pursuing it are appropriate and necessary, avails the respondent.
4.20. There was no dispute that the respondent is pursuing a legitimate aim in the agreement and implementation of the policy, that is, the effective and efficient operation of the State's prison system. Similarly, with regard to the question of necessity, there was little dispute between the parties, in that it was lack of staffing resources that made it necessary to implement the policy as described.
4.21. Mr. P., who at the time served at the prison's Chief Detail Officer, gave evidence of resource constraints. He stated that due to staff shortages, 90% of officers at the prison were conscripted to the highest overtime band. At the time of hearing the complaint, the recommended staffing levels for the prison were 204 officers, but the actual staffing only amounted to 191.5 full-time equivalent posts. Within the surgery, the majority of nursing officers applied for the zero hours overtime band, and none of them applied for the 360 hours overtime band. At the time of hearing, there were ten staff in the surgery, two of whom job-shared, and 9.5 full-time equivalent posts, of which one was on the 112 hours band, one on the 240 hours band and the remainder on the 360 hours band. Within the rest of the prison, there were 120 prison officers on the 360 hour band and the remainder on lower bands.
4.22. Mr G., the former governor of the prison in which the complainant worked, gave extensive direct evidence of the resource constraints he found himself under, and which I accept. This leaves the concept of "appropriateness" as the last part of the test.
4.23. The question of whether the respondent acted appropriately in the manner in which it implemented its policy with regard to the complainant is probably best examined by asking whether any efforts were made to take account of the complainant's situation and to facilitate her if this was possible. The relevant evidence from the respondent on this matter was as follows:
4.24. Mr P. gave evidence that many conscripted overtime hours were "written off" by the respondent, that is, staff were not required to work those. The average "write-off" for surgery staff, according to Mr P., was 23% of conscripted hours. The complainant did not challenge this evidence, except to point out that the "write-off" system, being often at short notice, did not necessarily reduce the unpredictability of the system. While I accept this point, I also find that Mr P.'s evidence does show that the system as implemented was not quite as demanding on staff as laid out in principle.
4.25. Mr P. also gave evidence that the majority of the complainant's requests for annual leave and special leave were granted. He further gave evidence that while the complainant was asked to work 12 additional days in 2006, there were only four occasions in the same year in which the complainant was asked to stay on and work an additional hour from 7pm to 8pm. In 2007, one such occasion arose. In 2008, fourteen such occasions arose, due to the sick leave of other surgery staff. It was then 5 in 2009 and one in 2010, up to the time of the hearing of the complaint.
4.26. Ms K., deputy governor of the prison and in charge of HR, gave evidence that it would have been open to the complainant to request the transfer to another prison closer to her home, with a view to reducing her commuting time, or to apply to job-share, essentially taking up a part-time role with the respondent.
4.27. Most importantly, Ms K. also gave evidence, which was supported by documentation and not challenged by the complainant, that when two additional nursing staff became available on a temporary transfer, that the complainant was immediately facilitated with a temporary move to the 240 hours band for the duration of their deployment.
4.28. I am satisfied from all of the above evidence that the respondent clearly did take note of the difficult personal circumstances of the complainant, and facilitated her as best possible in the light of considerable resource constraints and the managerial challenges arising from same. There were additional options the complainant could have availed of, in terms of transfers etc., which make it clear that the respondent did not in any way force the complainant to struggle on in her difficult situation. I am therefore satisfied that the respondent acted as appropriately as they could and that the defence set out in S. 31 of the Acts avails the respondent. I accept that the complainant found herself in very challenging personal circumstances as a result of the respondent's change in overtime policy and work practice, but it cannot be said that the respondent discriminated either directly or indirectly against her. Accordingly, the complainant cannot succeed.
Victimisation
4.29. I now turn to the complainant's complaint of victimisation. At the core of the complainant's case in this matter is the contention that when she complained about the difficulties she experienced in connection with the respondent's change in work practice, and which form her discrimination claim above, that the respondent's disciplinary policy was applied against her in a victimisatory manner.
4.30. The complainant's disciplinary infringements were exclusively connected to timekeeping, especially lates, non-attendance of additional hours and sick leave. This started in March 2006, when the new policy was starting to be implemented. The complainant stated that she had never been in trouble with management before and had never been disciplined. The complainant submitted that the stress she was under caused her illness. She further stated that the warning letters she received for these infringements caused her further stress. From 2006 to 2010, the complainant had 21 sick absences totalling 92 days off work.
4.31. The respondent, in response, submitted that the letters which the complainant received were automated letters from the HR system which issued when a certain number of lates or sick days had accumulated. The complainant had never been formally charged with a breach of discipline, or sanctioned in any way. Furthermore, Ms K. stated in evidence that she had a meeting with the complainant in which she attempted to explain to the complainant the automated nature of letters on sick absence, and that sick leave would be reviewed by management independently. For example, a road traffic accident in which the complainant was injured would not count towards any sick absence that could result in sanctions. Extensive documentation in this matter was also submitted to the Tribunal.
4.32. It was the complainant's evidence that prior to the introduction of the respondent's overtime policy, a "blind eye" would often be turned to matters of lates and sick leave, but that the Prison Service as a whole was much more aggressive about sick leave in particular after the policy was introduced. This was confirmed by Mr P., who stated in evidence that the disciplinary procedures needed to be implemented fully in order to be effective. Be that as it may, I find that for a complaint of victimisation to succeed, the complainant would need to show that the respondent's disciplinary procedures were implemented against her in a way that significantly exceeds implementation measures taken against someone else. The complainant did not adduce any such evidence, and Ms K. gave evidence that there is a female staff member at the same prison who has lost her increment due to lates and had sick leave withdrawn. Such disciplinary measures were not taken at any time against the complainant. Accordingly, I find that the complainant's complaint of victimisation must fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate against, either directly or indirectly, against Ms Ann McDonnell on the grounds of gender, marital or family status, in her terms and conditions of employment contrary to S. 8 of the Acts, and did not victimise Ms McDonnell contrary to S. 74(2) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
27 October 2011