DEC-E2013-009- Full Case Report

DECISION NO: DEC-E2013/009

PARTIES

Sola Fajembola

V

BT Ireland Limited

FILE NO: EE/2010/111

Date of issue: 19th of February, 2013

1. Dispute

1.1 This dispute involves a claim by Ms. Sola Fajembola against BT Ireland Limited that she was discriminated against on grounds of race (other). The complainant has also submitted a complaint of victimisation on grounds of gender (pregnancy) and race.

2. Background

2.1 The complainant referred two complaints under the Employment Equality Acts 1998 to 2008, to the Equality Tribunal, the first on the 16th of February, 2010 alleging that the respondent had discriminated against her, on grounds of race, when she was treated less favourably than her Irish colleagues regarding a complaint in relation to the alleged forging of a signature on company documents. The complainant submitted a second complaint on 4th of June 2010 alleging that she was discriminated against on grounds of race, and gender (pregnancy) when the respondent initiated and continued a process to determine the employment of the complainant during her pregnancy. In addition it is submitted that the complainant was victimised contrary to section 74(2) of the Acts following a complaint to the Equality Tribunal.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated this case on 28th of May 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to Hearings on the 21st of September, 2012 and the 13th of December, 2012.

3. Summary of complainant's case

3.1 The complainant submits that she was employed by the respondent from 16th September, 2002. She was initially employed in Data and IT Execution and in May 2007 she was reassigned as a Software Engineer.

3.2 The complainant submits that on 17th of July, 2009 she was summoned by her manager Mr. K who advised her that a colleague of hers Mr. T, had alleged that the complainant had forged Mr. K's signature on a software release document. The complainant was requested to attend a fact-finding meeting immediately.

3.3 The complainant protested her innocence and stated throughout the process that, at the time she had given the relevant software release notes to Mr. T, the signature of Mr. K had not been appended to the notes.

3.4 It is submitted that the complainant requested that a thorough investigation be conducted to ascertain how the signature got on the notes in question and demanded that the Gardaí be called in. The Gardaí were not called.

3.5 On 20th of July, 2009 the complainant was placed on a precautionary suspension and was walked off the premises.

3.6 On 13th of August 2009 the complainant attended a disciplinary hearing with an allegation that she had falsified the signature of Mr. K. Again the complainant requested that others be investigated and that the Gardaí be involved in the matter.

3.7 The respondent, in its finding in relation to the falsification of documents did not uphold this allegation against the complainant and stated that it would not proceed with the investigation as staff were not very clear about procedures.

3.8 The complainant submits that she was the only employee investigated in relation to the allegations of forgery and that the disciplinary process was invoked against her while others who would have had opportunity to forge the document were not investigated. It is submitted that this amounts to discrimination on grounds of race.

3.9 On 29th of September, 2009 the complainant received a letter stating that she should have resumed work on 28th of September as a letter to this effect had allegedly been sent to her on 22nd of September, 2009. The complainant had not received the letter and only became aware that her suspension was lifted on 29th September 2009.

3.10 The complainant submits that she was unable to return to work due to the stress and psychological damage she suffered as a result of this matter. The respondent did not at any point apologise to the complainant but instead, on 30th of October 2009, notified the complainant of its intention to commence a review of her position as she had been absent from work for 90 days or more on a 12 month rolling basis. This was called a Second Line Manager Review. The respondent in calculating the 90 days absence included in its calculation the period of time during which the complainant was suspended and also included weekends. The complainant submits that she did not work weekends and so could not have been in work during these days or during the suspension period.

3.11 In or around February, 2010 the complainant submits that she verbally informed the HR Department that she was pregnant and furnished sick notes from 8th of March, 2010 which showed that she had a difficulty with her pregnancy.

3.12 It is submitted that on 31st of March, 2010 the respondent sought to dismiss the complainant for her non attendance at work.

3.13 It is submitted that after the complainant notified the respondent of her pregnancy the respondent failed or neglected to advise her of her entitlements such as maternity leave top up pay etc. and also delayed sending her forms to Social Welfare for maternity benefit. It is submitted that this amounts to victimisation as a result of her complaint.

3.14 The respondent awarded pay increases to staff while the complainant was on unpaid maternity leave and it is submitted that the complainant was excluded from these pay increases and this amounts to victimisation and less favourable treatment on grounds of gender.

3.15 The complainant following her pregnancy was refused sick pay by the respondent as she was advised that after being absent for 90 days in a 12 month rolling period she would have to return to work to qualify for sick pay at the respondents discretion. Thus the respondent was counting maternity leave and subsequent annual leave as absence from work in calculating the 90 days absence and it is submitted that this is also discrimination based on gender and victimisation due to her complaint .

4. Summary of respondent's case

4.1 The respondent agrees that the complainant was employed by them from September 2002 and submits that she is still employed by them and that they have not at any time sought to dismiss the complainant.

4.2 It is submitted that the complainant has misrepresented the disciplinary proceedings against her and has omitted details of a further allegation against her. It is submitted that the respondent's decision to initiate an investigation into these two separate allegations was justified and unrelated to her race.

4.3 It is submitted that between 3 March and 7 May 2009 the complainant made 35 personal calls to the USA and 44 personal calls to Nigeria some as long as 41 to 54 minutes at a cost of €536.24. She did this despite the fact that this issue had been raised informally by her manager in March 2008 and again during her annual review.

4.4 It is submitted that on in June 2009 a separate allegation arose that the complainant had falsified a company document by signing her line manager's signature on a sign off sheet.

4.5 It is submitted that both matters were investigated by the complainant's line manager, Mr. K and informal fact-finding meetings were held on 16 June 2009 and 17 July 2009. On foot of these meetings and in accordance with standard practice, where it is indicated that serious misconduct may have taken place, the complainant was placed on a precautionary suspension on 20 July 2009. The complainant was asked at this point to provide a written explanation for both matters by 21st of July, 2009, which she never provided.

4.6 On 24th of July 2009 the complainant was invited to a disciplinary hearing which took place on 13th of August 2009 with the complainant, her employee representative and Ms. D of the respondent. As a result of comments made by the complainant during this meeting, the meeting was adjourned pending further investigation into the allegation of falsification of documents. The first allegation relating to the international phone calls was fully addressed at this meeting, and on 23 September 2009, Ms. D concluded that the complainant was guilty of unauthorised use of the respondent's telephone facilities and she was given a final written warning and ordered to repay the costs of the phone calls.

4.7 As regards the falsification of documents, Ms D. concluded, after further investigation, that, due to lack of procedural clarity in respect of software release notes there was not enough evidence to support this allegation or to pursue an inquiry with any third party. The complainant was advised on 23 September 2009 that the respondent did not uphold this allegation. The complainant appealed the decision and the appeal was considered by Ms. M who did not uphold the appeal against the first sanction for misuse of a BT phone line. Ms M pointed out that the sanction was based entirely on the first allegation and indicated that the second allegation had not been upheld.

4.8 On 23 December, 2010 the complainant submitted an application for a High Level Review which is a second level of appeal, in relation to the second allegation. This is permitted where there has been a significant breach under the formal disciplinary procedures. This was dealt with by Ms. R who again indicated that the second allegation had not been upheld. She also found that there was no evidence of a significant breach in disciplinary procedures. Thus it was not passed for a High Level Review.

4.9 On 17th of August 2009, the complainant went on sick leave due to stress.
The respondent in November 2009 advised the complainant that she had exhausted the sick pay scheme. The respondent in due course requested that the complainant be medically examined and was informed by Medmark on 2 December 2009 that the complainant would not be fit for work for the foreseeable future.

4.10 On 14th of January 2010 the respondent arranged a meeting as part of its attendance procedure to give consideration to a return date and/or the complainants continued employment. No decision was made at this time. Following this the complainant refused to attend any further medical appointments.

4.11 In May 2010 the complainant informed the respondent of her pregnancy and on 1 September, 2010 went on maternity leave.

5. Conclusions of the Equality Officer

5.1 The issues for decision by me now are, whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2) (h) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, in relation to her conditions of employment and in relation to her dismissal. I must also make a decision on whether the complainant was victimised on grounds of gender (pregnancy) and race. 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 at the Hearing.

5.2 Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....."

Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "

5.3 Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because she is African. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:

Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.

5.4 Complaint re allegation of forgery

5.4.1 On the day of the hearing the complainant outlined the circumstances surrounding the allegation, against her, of falsification of company documents. She advised the hearing of the process involved before any software can be released in to the working environment. She advised that following testing, software could not be released unless the release documents contained the signature of the software tester and the line manager, in the complainant's case, Mr. K. The complainant advised the hearing, that on the date in question her colleague Mr. T had approached her and asked her for the release notes relating to particular software. She advised the hearing that this software had not been certified for release and thus the release documents had not been signed by Mr. K her line manager. The complainant gave the relevant documents to Mr. T as he had requested. The complainant advised the hearing that a few days later on 17th of June, 2009 she was called to the office by Mr. K and told that his signature had been forged on the relevant software release notes and that she had been accused of carrying out the forgery. Mr. K stated that her colleague Mr. T had alleged that the complainant was responsible for the forgery. The complainant told the hearing that she had at this point denied that she had forged the signature and stated that she had no reason to forge Mr. Ks signature on the document and that she would have nothing to gain by doing so. She stated that she asked that the guards be brought in and a handwriting expert in order to ascertain who was responsible for the forgery. The complainant stated that she also asked that her colleague Mr. T be investigated as well as anyone who had access to the document during the relevant period.

5.4.2 The complainant advised the hearing that the next working day a meeting took place between Mr. K and two other managers Ms. T and Ms B from HR. The complainant advised the hearing that following this meeting, about halfway through the morning, she was called away from her desk and in to a room by Ms. T who advised her that she was being placed on a precautionary suspension pending an investigation into the allegations against her. The complainant stated that she was told by Ms. T to clear her desk and to leave the building. The complainant stated that she was upset and humiliated at this time as she was made to clear her desk there and then in front of her colleagues while Ms. T waited for her to do so. The complainant stated that Ms. T told her not to pack her laptop and when she was finished clearing her desk, Ms. T then accompanied her to the lift, down to the ground floor and out of the building. The complainant stated that this was a very upsetting and embarrassing experience for her, especially as it took place in an open plan workplace in the presence of her colleagues. It is submitted by the complainant that she was the only staff member investigated in relation to this matter and that she was the only staff member put on precautionary suspension due to this. The complainant submits that this amounts to discrimination on grounds of race.

5.4.3 As regards the precautionary suspension, the respondent agrees that Ms. T did advise the complainant of her suspension and did wait for her to clear her desk before accompanying the complainant out of the building. The respondent's evidence is that a precautionary suspension was necessary in the circumstances due to the fact that the complainant was being investigated in relation to 2 separate disciplinary matters. The first incident related to the allegation of falsification of a company document (forging Mr. K 's signature) but the complainant was also the subject of another disciplinary matter concerning the misuse of BT facilities. The respondent added that the company's disciplinary procedure provides for precautionary suspension in cases of alleged serious misconduct. On the day of the hearing, it was argued, on behalf of the complainant that misuse of a BT landline does not fall under the definitions of Serious Misconduct as provided for within BT's Discipline Policy. It was argued that 'Misuse of communications media..' which includes mobile phones does appear on the list but that misuse of a BT landline does not. It was argued that the complainant was subjected to a precautionary suspension and that this was contrary to the Discipline Policy and amounts to less favourable treatment of the complainant on grounds of race.

5.4.4 Upon examination of BT's Discipline Policy and the definitions of Serious Misconduct contained therein the list does contain a reference to 'falsification of records and company documents'. As the complainant was being investigated in relation to two allegations one of which did relate to serious misconduct i.e. falsification of a company document, it would appear that a precautionary suspension was a course of action open to the respondent under its Discipline Policy. I am therefore satisfied that the respondent was operating within its Discipline Policy which provides for the precautionary suspension of a staff member who is the subject of an allegation of serious misconduct. I am also satisfied from the totality of the evidence adduced in relation to this matter that the imposition of a precautionary suspension was unrelated to the race of complainant. Accordingly I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.

5.4.5 The complainant advised the hearing that she was the only person investigated in relation to the alleged falsification of company documents. The complainant has submitted that this amounts to discriminatory treatment on grounds of race. The allegation against the complainant in relation to this matter was not upheld and therefore no sanction was applied. However, the fact remains that the documents were falsified which is a serious offence and which according to the respondents own discipline Policy is an offence which is to be regarded as Serious Misconduct. The respondent, when questioned, advised the hearing that no one else was investigated in relation to the alleged forgery, as a conclusion was reached in the matter, that staff did not have a proper understanding of the software release procedures and so, it was felt that the allegation could not be upheld against the complainant or against any staff member in the circumstances. Witness for the respondent Ms. D, when questioned as to why no one else was investigated, advised the hearing that following issues raised by the complainant in the meeting of 13th of August, 2010 she had adjourned the meeting in order to speak to other staff implicated in the matter. Ms. D when questioned, advised the hearing that having spoken to other staff including Mr. T in relation to the matter she felt 'something wasn't right' and 'didn't quite fit'. She added that she had 'got a bad feeling about it' and so had decided that she could not uphold the allegation against the complainant. Ms. D added that she never reconvened the meeting of 13th of August 2010 and instead made a finding that the allegation of falsification of documents could not be upheld and that no further investigation would take place into the matter as staff were unclear as regards software release procedures. This decision was appealed by the complainant and Ms. M, for the respondent came back with the same decision that the allegation of falsification of documents was not being upheld.

5.4.6 It is clear from the evidence adduced by both parties that both the complainant and the respondent agree that the Mr. K's signature was forged on the documents in question. It is also clear that the respondent treated the allegation against the complainant very seriously in that it was a contributory factor to her being placed on a precautionary suspension. Falsification of company documents is also a matter which is referred to as serious misconduct within the company's discipline policy and which can under that policy potentially lead to a dismissal. Having regard to the seriousness of the allegation and the seriousness with which it was treated when it was alleged that the complainant was the person responsible, I find it surprising then that the respondent once satisfied that the complainant was not responsible failed to pursue the investigation with any other staff members. The reasons given by Ms. D for not proceeding with the investigation such as that 'something wasn't right' and 'didn't quite fit' do not logically lead to the conclusion reached, which was that staff members were unclear as regards software release procedures. I am thus forced to look elsewhere for a reason as to why the complainant was the only one investigated and the reason suggested by the complainant is that it was due to her race. In the absence of any other reasonable or logical explanation as to why the investigation was only pursued against the complainant, and as she was the only African person working in that Department, at the time of the incident, I must consider that her race was a contributing factor. It is clear from the evidence of both parties that they are in agreement that the forgery did occur and that the complainant was investigated in relation to this matter and that no one else was investigated or no sanction imposed in relation to such a serious matter. Instead the respondent failed to proceed with the investigation against any other member of staff even though the complainant pointed out that another named staff member would have had ample opportunity to forge Mr. K's signature on the document. It is also clear that Ms. D in her fact finding interview with other staff members became suspicious that all was not right but the investigation did not proceed against any other staff members.

5.4.7 It is clear from the evidence of both parties that the forgery did occur and that the complainant, who was the only African working in that Department at that time, was investigated in relation to this matter and that no one else was investigated or no sanction imposed in relation to such a serious matter. I am thus satisfied from the totality of the evidence adduced in relation to this matter that the complainant has raised a presumption of discrimination in relation to this matter which the respondent has failed to rebut. Accordingly I find that the complainant was discriminated against by the respondent on the ground of race in relation to this matter.

5.5 Misuse of a BT landline

5.5.1 As regards the misuse of a BT landline the respondent advised the hearing that the complainant, between March and May 2009 had made 35 personal calls to the USA and 44 personal calls to Nigeria. The combined cost of these calls was €536.24. The complainant made these calls despite the fact that this issue had been raised with her in March 2008 and also in her previous Annual Review. The respondent advised the hearing that the misuse of a BT landline is a matter which is considered as Serious Misconduct. The respondent advised the hearing that International calls are only permitted with a manager's permission and that failure to comply with this constitutes a serious breach of rules regulations policies and/or procedures which is a matter of Serious Misconduct as provided for within the Discipline Procedure and the Conduct Standards Policy. The respondent following its investigation into both matters decided not to uphold the allegation of falsification of a company document and thus no sanction was imposed in relation to this matter. As regards the serious misuse of a BT landline, the respondent imposed a sanction of a final written warning in relation to this matter and the cost of the calls totalling an amount of €536 to be reimbursed to the company by the employee.

5.5.2 The complainant, at the hearing stated that she was aware of another employee who had also been found to have misused a BT landline and that he had only received a verbal warning for the same offence. This the complainant submits is further evidence that she was treated differently due to her race. The respondent at the hearing made the point that the other employee, who had not engaged in the same volume of calls as the complainant, had received a verbal warning and following this warning, had ceased the practice. However it is the respondent's evidence that the issue of international calls was raised with the complainant in March 2008 and again at her Annual Review but despite this, the complainant continued to make international calls without permission.

5.5.3 The other employee the subject of this offence Mr. M also appeared at the hearing and confirmed that he had been treated differently by the respondent regarding the same offence that of, misuse of a BT landline. Mr. M had made a number of calls to Nigeria without the permission of his manager. Mr. M stated that he had received a verbal warning. The respondent advised the hearing that Mr. M was given a verbal warning about the phone calls and that he then stopped the practice however the respondent stated that the issue was raised with the complainant on two occasions and she ignored these warnings and continued to make the phone calls. The respondent stated that the complainant then received a final written warning in relation to the matter as she had ignored previous warnings. Thus it is clear that the issuing of a verbal warning to Mr. M was due to the fact that this was his first offence in this regard while the complainant continued to offend after the issue was raised with her on two separate occasions.

5.5.4 The complainant's claim to the Tribunal is based on discrimination on grounds of race i.e. that she was treated less favourably due to her race. The employee who had also engaged in the practice of misuse of a BT landline Mr. M is of the same race as the complainant, thus it is not clear how the complainant is claiming less favourable treatment on the grounds of race in relation to this matter as there was no difference in race between the complainant and the comparator in this instance. I am thus not satisfied from the totality of the evidence adduced in relation to this matter that the circumstances were the same between the complainant and comparator or that the complainant was treated less favourably than the comparator on the ground of race. Accordingly I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.

5.6 Non attendance at work -Second Line Manager Review

5.6.1 The complainant has submitted that the respondent sought to dismiss her for non attendance at work, even though, that non attendance was in part due to her precautionary suspension and in part, due to stress related sick leave following the allegations against her, and that this amounts to discrimination on grounds of race. The complainant advised the hearing that following the allegations of falsification of company documents she was absent from work due to stress related sick leave. The complainant advised the hearing that on 30th of October 2009 she received a letter from the respondent notifying her of its intention to commence a review of her position as she had been absent from work for 90 days or more on a 12 month rolling basis. This was called a Second Line Manager Review.

5.6.2 The complainant advised the hearing that the respondent in calculating the 90 days absence included in its calculation the period of time during which the complainant was on precautionary suspension and also included 8 weekend days in October 2009.

5.6.3 Suspension period - The complainant advised the hearing that she was precluded from attending work during this period as she was on a precautionary suspension. The complainant submits that this period should not have been counted as absence days as she was not allowed to attend work during this period. It emerged at the hearing that the complainant had submitted medical certificates during the period in question which stated that the complainant was unfit to attend for work during this time due to stress/anxiety. Thus the respondent submits that the complainant was not available for work during this time due to illness and not due to her suspension.

5.6.4 It could be argued that even though the complainant was on certified sick leave during the period she could not have attended work even if she were not sick due to the fact that she was on suspension. Having said that, it is a fact that the letter of suspension dated 20th July, 2009 states that the complainant was placed on precautionary suspension with full pay and stipulates that she must continue to be available for work and readily contactable during her normal hours of employment. It would appear that the fact that the complainant submitted medical certificates indicating that she was unfit for work during the period in question, is a clear indication that she would not have been available for work even if the suspension was lifted during that period.

5.6.5 In the circumstances I must accept that the complainant's sickness and medical certificates from her GP are evidence that the complainant was not available to attend work during the period in question irrespective of the precautionary suspension. In the circumstances I find that the respondent was entitled to record the relevant period as sick absence due to the fact that medical certificates were submitted indicating that the complainant was not fit to attend work during that time notwithstanding the fact that it took place during the suspension period. Thus I accept the respondent's submission that the complainant was not available to attend work during the period in question due to sickness.

5.6.6 The complainant further submits that she did not work weekends and that weekend days should not have been included in the respondent's calculation of the 90 days. The complainant was paid a monthly salary in arrears and her contract states that normal working hours are from 8.30 to 5.00 but that due to the nature of her role her hours are understood to be flexible. The contract does not specify the days on which these hours are to be worked.

5.6.7 The respondent advised the hearing that the company's Absence Policy provides that BT will pay normal salary in the case of certified absence up to ninety calendar days in a twelve month rolling period. The respondent submits that this ninety days is calculated according to calendar days for the purposes of both pay and management of absence and that it includes weekend days. The respondent submits that this policy is applied in the same way to all 700 of its employees in Ireland. The respondent submits that that this policy is intended primarily to enable a return to work, and only if this is not possible in the long term, then to consider whether termination by reason of incapacity might be justified. The respondent indicated that this process has been applied in 119 absence cases over the previous five years and that none have resulted in termination on foot of the process. One of the outcomes of the process is to place employees who have exhausted their sick pay on Permanent Health Insurance which would entitle them to 75% of their salary. The respondent advised that this process is applied equally to all staff who have been on sick leave for over 90 days and had it not been applied in this case the complainant would have been the only employee on long term sick leave to whom it was not applied. The complainant did not produce any evidence to suggest that she was treated differently to any other staff member in relation to this policy. I am satisfied from the totality of the evidence adduced in relation to this matter that the respondent was adhering to its established absence policy regarding the calculation of the absence period of 90 days and that there was no discriminatory application of this policy in relation to the complainant. Accordingly I find that the complainant has not established a prima facie case of less favourable treatment on the ground of race in relation to this matter.

5.7 Exclusion from Salary Increases

5.7.1 It is submitted that the respondent awarded pay increases to staff while the complainant was on unpaid maternity leave and that she was excluded from the pay increases and this amounts to victimisation and less favourable treatment on grounds of gender. The respondent submits that the complainant was one of many staff who did not receive a pay increase at this time. The respondent stated that these increases, awarded in June 2011 were performance based and the complainant did not receive one as she had not been present at work for an extended period of time and prior to her absence had been in the process of a performance improvement plan. It is submitted that the complainant was similarly not awarded pay increases in 2009 (prior to her original claim) or in 2010 thus it is clear the decision not to award her a pay increase was made irrespective of the original claim or her pregnancy. The complainant did not provide any evidence to support the allegation that the failure to award her a pay increase was due to her pregnancy or due to her earlier complaint. Accordingly I find that the complainant has not established a prima facie case of less favourable treatment on the ground of gender or of victimisation in relation to this matter.

5.8 Continuation of Process to determine employment status

5.8.1 The complainant submitted that she verbally informed the HR Department of her pregnancy in or around February 2010 and that she furnished sick notes from 8th of March, 2010 which showed that she had a difficulty with her pregnancy. The complainant submits that the respondent continued the process to determine the status of her employment despite having been notified of her pregnancy. She submits that the respondent continued to schedule meetings in this regard even though she was now unable to attend due to pregnancy problems. The respondent submitted that it did not become aware of the complainants pregnancy until April 2010 and that the first medical certificate which indicated that the complainant was experiencing pregnancy related health issues was sent on 8th of April, 2010 (copy of dated postmarked envelope submitted) and was received by the respondent on 10 April, 2010. The enclosed medical cert indicated that the complainant was suffering from pregnancy problems and was dated 12 March 2010 and covered the period to 05 April, 2010. The respondent submits that it was at this point engaged with the complainant in a process to facilitate the complainant, in returning to work in any capacity and/or in accessing Permanent Health Insurance whereby she would be entitled to receive up to 75% of her salary. The respondent had also, at this point, referred the complainant to Medmark, following her 90 days sick absence, who had advised them in December, 2009 that the complainant was unfit for work for the foreseeable future. Following this the respondent had met with the complainant as part of the Second Line Manager Review in January 2010 and had arranged to meet her again in February and in early March both of which had to be postponed at the complainant's request. The Final resolution meeting took place on 31st of March, 2010. The complainant had advised the Tribunal that the respondent was by this time aware of her pregnancy however the respondent contends that it did not become aware of the complainant's pregnancy until after this date. The complainant when questioned advised the hearing that her pregnancy was not referred to by anyone in this meeting.

5.8.2 The complainant at the hearing stated that she had sent the medical certificate of 12th March by email and by registered post initially to Mr. C. The respondent stated that it did receive a medical cert from the complainant at this time but that the cert related to laser eye surgery which the complainant had undergone and covered the period 2 March, 2010 to 29 March, 2010 (copy submitted). The complainant agreed that she had submitted this cert for that period but added that she had also submitted another cert indicating pregnancy problems dated 12 March 2010 to 05 April, 2010. The respondent in email exchanges with the complainant at that time indicated that the only medical cert they had received during this period was the one relating to the eye surgery which had an end date of 29 March, 2010. The respondent on 6th of April 2010 emailed the complainant indicating that her cert had expired on 29th of March, 2010 and seeking an updated cert. Witnesses for the respondent re iterated this at the hearing and stated that the first cert it received with an indication of pregnancy problems was posted on 8th of April, 2010 albeit that the cert was dated 12th of March to 5th of April. The complainant acknowledged that she had resent the cert on this date once she had been informed by Ms. T, by email, that the last cert they had received had been the one which related to eye surgery which expired on 29th of March, 2010. I see no reason why the respondent would have emailed the complainant on 6th of April, 2010 indicating that her medical certificate had expired on 29th of March, 2010 and requesting a new one if it had in fact already received the cert covering the period up to 5th of April. I am also satisfied that the respondent only became aware of the complainant's pregnancy problems after 8th of April, 2010. The respondent stated that once it became aware that the complainant was suffering from pregnancy problems they did not schedule any more meetings in respect of the respondent's absence policy and that she remains in employment with the respondent.

5.8.3 The complainant submitted that the respondent continued to insist that she attend for medical assessments in respect of her PHI applications despite being aware of her pregnancy problems. The respondent stated that it had no problem with rescheduling this appointment once it became aware of the complainants pregnancy problems but that they had to advise her that her PHI application could not proceed without medical assessment and that it would cause a delay in payment from the PHI scheme, if approved.

5.8.4 I am satisfied from the totality of the evidence adduced in relation to these matters that the respondent did not become aware of the complainant's pregnancy or pregnancy problems until April, 2010 and that following this, the respondent did not continue the process in relation to its absence policy but rather advised the complainant that her PHI payment would be delayed until after her medical assessment. Accordingly I find that the complainant has not established a prima facie case of less favourable treatment on the ground of gender in relation to this matter.

5.9 Second Line Manager Review Process

5.9.1 The complainant has submitted that the respondent was trying to get rid of her. The notes of the first resolution meeting, which had been scheduled for 8th of January but which was postponed to the 14th of January, 2010 at the complainant's request, indicate that the objective of the meeting was to facilitate a sustained return to work for the complainant and that failing a return to work the respondent would have to review the position as they couldn't hold her job indefinitely. The respondent submits that, at this meeting, it made several proposals for the complainant's return to work such as a part time return or giving her a different role. The complainant, at this meeting, indicated that she was not fit to work and in response to suggestions for her return, indicated that she could not make any decisions there. The option of PHI was also discussed at this meeting. The respondent following this meeting issued a letter to the complainant on 4th of February, 2010 indicating that consideration was now being given to the termination of her employment, due to ill health and requesting that she meet with the respondent before any decision was taken, and to address any issues the complainant may want considered. This meeting was scheduled for 18th of February, 2010. The complainant advised the respondent that due to her ill health she would be unable to attend this meeting or to send in a written submission and asked for some time to be given due to the condition of her health. The respondent then postponed the meeting to 8th of March, 2010. The complainant later advised that she would be unable to attend the rescheduled meeting. This meeting finally took place on 31st of March, 2010 with the aim of giving consideration to the complainant's continuing employment. The notes of this meeting indicate that the possibility of the complainant returning to work, even in the short term, was again discussed and that the complainant again indicated that this would be dependant on her specialist. The option of Permanent Health Insurance was again discussed and the complainant was to revert with a decision on this matter.

5.9.2 A number of referrals to the Occupational Health Service were arranged for the complainant in order that she could apply for Permanent Health Insurance. These were arranged on 5 different occasions and cancelled by the complainant. From the totality of the evidence adduced in relation to these matters it appears that the respondent made continuing efforts to facilitate and encourage the complainant's return to work including discussing the option of a part time return or return to a different role as well as seeking to facilitate her with a PHI application, which, if successful, would entitle the complainant to receive up to 75% of her wages. Accordingly I find that the complainant has not established a prima facie case of less favourable treatment on the ground of race or gender or victimisation in relation to this matter.

5.10 Failure to advise complainant of her entitlements and delay of forms

5.10.1 It is submitted that after the complainant notified the respondent of her pregnancy the respondent failed or neglected to advise her of her entitlements such as maternity leave top up pay etc. and also delayed sending her forms to Social Welfare for maternity benefit. It is submitted that this amounts to victimisation as a result of her complaint. The respondent submits that information regarding maternity leave entitlements is only provided if specifically requested or once an application for maternity leave is made. From my examination of emails and letters between the complainant and respondent during July and August 2010 it is clear that the complainant was provided with information and documentation outlining her entitlements in relation to maternity leave etc. In addition it is clear that the respondent where required to do so, signed and returned forms to the complainant and responded to her correspondence. The complainant submits that the respondent deliberately delayed sending out completed forms in an effort to delay the complainants maternity benefit payments. The respondent stated that these items which were sent by Accenture (the respondents HR provider) were lost in the post and that other employees were also negatively affected by this postal incident (internal emails submitted to reflect this). The complainant did not provide any evidence to substantiate the allegation that this delay in her receiving the forms was in fact deliberate on the part of the respondent or that it occurred as a direct result of her claim to the Tribunal. Accordingly I find that the complainant has not established prima facie case of victimisation in relation to this matter.

5.11 Refused Sick pay following maternity leave

5.11.1 The complainant submits that following her pregnancy she was refused sick pay by the respondent and that she was advised that after being absent for 90 days in a 12 month rolling period she would have to return to work to qualify for sick pay at the respondents discretion. The complainant submits that the respondent in calculating this 90 day absence period was including her maternity leave and subsequent annual leave as absence from work and states that this is discrimination based on gender and victimisation due to her complaint. The respondent on this issue submits that the 90 day absence period refers to the 90 days absence which was notified to the complainant in November 2009 and which was the subject of a Second Line Manager Review prior to the complainant's Maternity leave. The respondent submits that where an employee has exhausted their sick pay entitlement in one 12 month period (as happened with the complainant's 90 days absence in November 2009) and has not been in a position to return to work, that employee does not automatically accrue a subsequent entitlement to be paid for another 90 days absence on commencement of a new 12 month period. It is submitted that the exhaustion of her sick leave entitlement refers to the 90 days absence in 2009 which was the subject of a Second Line Manager Review, a matter which had not been resolved prior to the complainant's maternity leave or to date. I am satisfied from the totality of the evidence provided on this matter, that the calculation of the 90 days absence period and the resultant exhaustion of the complainant's sick leave was unrelated to her maternity leave as it pertained to the sick leave absence policy issue which was outstanding prior to the complainant's maternity leave. Accordingly I find that the complainant has not established a prima facie case of less favourable treatment on the ground of gender or of victimisation in relation to this matter.

6. DECISION OF THE EQUALITY OFFICER.

6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -

(i) the respondent discriminated against the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts when she was the only staff member investigated in relation to the falsification of company documents

(ii) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against her on the ground of race pursuant to section 6(2) of the Acts and contrary to section 8 of the Acts in relation to the following matters
- Precautionary suspension from work
- Misuse of a BT landline, and
- Non-attendance at work-Second Line Manager Review
- Second Line Manager Review Process

(iii) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against her on the ground of gender pursuant to section 6(2) and contrary to section 8 of the Acts in relation to the following matters
- Exclusion from Salary Increase
- Continuation of a Process to determine her employment status
- Second Line Manager Review Process
- Refusal of Sick Pay
(iv) the complainant has failed to establish the facts from which it may be presumed that she was victimised contrary to section 74(2) of the Acts following a complaint to the Equality Tribunal in relation to the following matters
- Second Line Manager Review Process
- Failure to advise her of her entitlements
- Refusal of Sick Pay

6.2 In making my award, I am mindful of the fact that the complainant was subjected to an investigation in relation to an allegation of falsification of company documents which although not upheld did contribute to the complainant's being placed on a precautionary suspension and being escorted from her place of work. In addition I am mindful of the fact that no other staff member was subjected to an investigation, apart from the complainant, who was the only African working in that Department at that time, and no sanction imposed on any other staff member in relation to a matter as serious as falsification of company documents. I must thus ensure that the award is effective, proportionate and dissuasive. Having regard to the circumstances of the instant case and the rate of remuneration which the complainant was in receipt of at the relevant time, I consider an award of compensation in the sum of €13,000 to be just and equitable.

6.3 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.

_____________________
Orla Jones
Equality Officer
19 th of February, 2013