EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 016
PARTIES
Ms Michelle Beard
(represented by Ms Lisa Maher, B.L., instructed by Eirinn McKiernan & Co., Solicitors)
and
Health Service Executive
File References: EE/2010/112
Date of Issue: 5th March, 2013
Keywords: Family status, Equal Pay, no prima facie case - time limits
1. Claim
1.1. The case concerns a claim by Ms Michelle Beard that the Health Service Executive discriminated against her on the ground of family status contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2008, in terms of access to employment, promotion, conditions of employment and equal pay.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 22 February 2010. A submission was received from the complainant on 8 December 2010, to which the respondent responded on 25 January 2011. A further submission was received from the complainant on 6 September 2012. On 7 June 2012, in accordance with his 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 preliminary inquiry with both parties on 6 July 2012, followed by joint hearing of the case on 19 September 2012. Additional evidence was requested from the respondent at the hearing of the complaint and received on 25 October 2012. The last piece of correspondence relating to the complaint was received on 19 February 2013.
2. Summary of the Complainant's Written Submission
2.1. The complainant states that she commenced work for the respondent on 23 May 2005 under a Specified Purpose Employment Contract, which was a temporary contract. Her duties were clerical and administrative. She took up this employment around the same time as a number of other young women entered the respondent's employment under the same conditions, doing the same work. In March 2006, the contracts of the complainant and her colleagues came up for renewal. The complainant submitted a partially completed contract to management, however, her contract was never completed because she went on maternity leave on 14 April 2006.
2.2. Her colleagues had their contracts renewed, and, because they had no break in their employment with the respondent, became eligible to apply for a confined clerical officer competition in October 2006. This way, they entered the respondent's permanent employment, and enjoyed regular pay increments on the clerical officer scale.
2.3. The complainant, in contrast, was told that she could only re-enter the respondent's employment as an agency worker when she returned from maternity leave in September 2006, and has continued in this role, at the lowest point of the Clerical Officer pay scale, ever since. The break in service which was caused by her maternity leave meant that she was not eligible to apply for the confined Clerical Officer competition.
2.4. Over time, this has led to very substantial losses for the complainant, not only in pay, but also in the accumulation of pension entitlements and other benefits which permanent public sector staff enjoy. Accordingly, she has brought a complaint for access to employment, promotion, conditions of employment and equal pay on the ground of family status.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the alleged discrimination had a last occurrence some time in 2008, and given that the complaint was lodged in February 2010, it is out of time.
3.2. The respondent further submits that until 5 December 2011, when the EU Directive 2008/104/EC on temporary agency work became effective in Ireland, the only valid comparator of the complainant for the purposes of establishing whether discrimination existed in terms of equal pay, could be another agency worker pursuant to the provisions of S. 7(2) of the Employment Equality Acts.
3.3. The respondent denies that the situation of the complainant, as an agency worker, is in any way related to her gender or family status and points out that all of her named comparators are female, and some of these women also have family status.
3.4. Last, the respondent states that the complainant is a very good employee and that her contribution is highly valued. It states that no permanent clerical staff were taken on in the hospital were the complainant works after the confined clerical officer competition in October 2006. It states that the complainant's details are kept on file and that her application for a permanent position would be seriously considered if such a vacancy arose.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against within the meaning of the Acts. In coming to my decision, I have taken account of all oral and written submissions made to me by the parties in this matter.
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.
4.3. It is clear that the complainant's disadvantaged position vis-à-vis her group of colleagues flows from a single event, that is, the non-renewal of her contract in 2006, when she was pregnant and about to go on maternity leave. One reason the complainant filed a complaint with the Tribunal only in February 2010 was, as she states on her complaint form, that it was only with the passing years that the full extent of the disadvantage she found herself in became clear to her. This may well be true, but pursuant to the provisions of S. 77(5) of the Acts, I am barred by the statute from examining whether pregnancy-related discrimination might have occurred at the material time. The time extensions provided for in S. 77(5) of the Acts do not avail the complainant because the events that caused her current situation occurred some 3 ½ years before she lodged her complaint.
4.4. Both counsel for the complainant and her solicitor pleaded with me to view the complainant's situation as ongoing discrimination due to her family status, in that having family status was a result of her pregnancy, and that without it, she would have had the same chances as her colleagues to obtain permanent employment.
4.5. However, Equality Officers, in their consistent practice over the years, have never treated pregnancy and childbirth as an ongoing event in the manner suggested by counsel, nor is there any decision of the Labour Court to support such an approach. Any pregnancy, childbirth and maternity leave, which may have attracted discriminatory treatment by an employer, is a discrete trias of events with a beginning, when the worker lets her employer know that she is pregnant, the confinement, and an end when the worker returns to work after maternity leave. Family status is a separate ground for which discrimination is prohibited, and if this is complained of, a separate prima facie case in respect of it needs to be established by any complainant. It is also important to note in this context that the complainant has not brought her complaint on the ground of gender.
4.6. Furthermore, counsel's reasoning would amount to an argument that the respondent refuses workers permanent employment due to their family status, or hires people with family status only as agency workers. This appears manifestly improbable, if one thinks about the high numbers of permanent staff the respondent employs, being one of the largest employers in the country. Many of these permanent workers have to have family status simply as a matter of statistical probability. And indeed, some of the comparators whom the complainant has named for the purpose of her complaint on equal pay do have family status. Accordingly, there is no evidence that the re-employment of the complainant as an agency worker is in any way connected to her family status, and her complaints of discrimination on this ground relating to access to employment, promotion and conditions of employment must therefore fail.
4.7. The respondent accepted, however, that the complainant has gained rights under the Protection of Employees (Temporary Agency Work) Act 2012, and stated at the hearing of the complaint that it is committed to implementing same. This would be a matter outside the jurisdiction of this Tribunal.
4.8. Turning to the complainant's complaint of equal pay, considerable argument between the parties ensued over the provisions of S. 7(2) of the Acts, which entitle the complainant only to an agency worker comparator until 5 December 2011. Counsel for the complainant argued that Directive 2008/104/EC was applicable retrospectively, whereas the respondent denied this. However, not much turns on this point, as all four comparators named by the complainant were female, and one of them also had family status. Since both the woman with and the women without family status earned different salaries than the complainant, on the ground that they had obtained permanent employment with the respondent and were thus progressing up the incremental scale, this rules out family status as the reason for the difference in the complainant's pay. Accordingly, this part of her complaint must also fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the Health Service Executive did not discriminate against Ms Michelle Beard on the ground of family status in access to employment, promotion, conditions of employment or the entitlement to equal remuneration.
______________________
Stephen Bonnlander
Equality Officer
5 March 2013