The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-112
PARTIES
Magdalena Glogowska Milkowska
(Represented by Ciaran Lawlor B.L.
instructed by O'Hanrahan and Company Solicitors)
AND
Neylons Maintenance Limited
(Represented by Kelly and Griffin Solicitors)
File reference: EE/2011/355
Date of issue: 13 September 2013
HEADNOTES: Employment Equality Acts - Sections 6 & 8 - Gender, Family Status - Conditions of Employment , discriminatory dismissal, harassment.
1. DISPUTE
1.1. This dispute concerns a claim by Ms Magdalena Glogowska Milkowska that she was discriminated against by Neylons Maintenance Limited on the grounds of gender, family status and race in terms of section 6, of the Employment Equality Acts regarding conditions of employment, discriminatory dismissal and harassment, contrary to Section 8 of the Acts. The complainant withdrew an element relating to victimisation at the hearing.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 24 March 2011 under the Acts. On 26th April 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, 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(1) of the Acts and as part of my investigation I proceeded to a hearing on 10 June 2013.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant started work for a hospital in late 2007 as a cleaner. The complainant submits that the hospital wrote to her informing her that her employment would be transferred to the respondent on the 8 February 2010.
2.2. On 8 August 2010 she went on maternity leave and the complainant submits that she was due to return to work on 10 January 2011. The complainant submits that she applied for supplemental maternity benefit as allowed under the hospitals employee handbook and was refused. The complainant submits that on returning to work, her supervisor explained that the contract for all employees had changed and that she would be required to sign a new contract. The complainant states that because she refused to sign a new contract she was informed by her supervisor that she would have to send in a resignation letter. The complaint states that a meeting was arranged for the 31 January 2011 in order to discuss her position.
2.3. At that meeting on the 31 January the complainant says that the Managing Director of the respondents' company assured her that a position could be found for her but that she could not return to work until the 14 February 2011.
2.4. The complaint submits that prior to her return to work on 14 February 2011 that she had never been reprimanded for her work.
2.5. The complaint submits that she was late for work on her first day back due to child care considerations for which the respondent issued her with a written warning invoking stage one of their disciplinary procedures.
2.6. On 15 February the complainant submits that she was assigned to work cleaning a laboratory with which she was not familiar. The complainant submits that the following day she was reprimanded for her work on this area, specifically leaving the lights on and doors open. The complaint states that she does not accept that the quality of her work was lacking and that this incident is an example of how she was being singled out and punished by the respondent.
2.7. The complainant submits that as a result of the reprimand she was assigned to a different area, radiotherapy with which she was familiar. She submits that on the following morning, the 17 February that she was again reprimanded for the quality of her work, this time being presented with a list of specific items she had failed to address. The complainant states that her level of work was consistent with her pre-maternity standard and that this incident is another example of punishment by the respondent. While being reprimanded by her supervisor the complainant submits that she requested that she be allowed to change her shifts from afternoon to morning as she could not afford child care. The complainant submits that the supervisor's response to this request was that her husband should get a new job.
2.8. The complaint submits that at a meeting on the 18 February that she received a verbal warning that unless her work improved that she would receive a written warning. The complainant states that she received further undeserved reprimands from her supervisor on the 22 and 24 February.
2.9. The complainant states that she was forced to resign from her position on 25 March 2011 due to the ongoing bullying and her conditions of employment.
2.10. The complaint submits that since her return to work following maternity leave that the general conditions of her employment have changed in that.
- Her shift patterns had been consistent but changed to inconsistent and unpredictable.
- She now had to work in areas of the hospital with which she was not familiar and she was not informed of any special requirements in these areas.
- The level of cleaning required was to a higher standard.
3. RESPONDENT'S SUBMISSION
3.1. The respondent rejects all elements of the complaint. They submit that all of their actions have reasonable explanations which have been fully documented including all of the warnings, reprimands, and meetings which they say were as a result of the complainants' attendance record, poor housekeeping and attitude towards her employment. They submit that the complainant was not treated differently to any of the other employees as the same rules applied to all employees in the hospital environment which the respondent serviced. They say they did not try to force her resignation if she did not sign a new contract.
3.2. The respondent submits that they ceased supplementary maternity benefits to all employees following the transfer of undertakings.
3.3. The respondent submits that the complainant had been reprimanded for her work prior to her return on the 14 February 2011 and supplied uncontested documentation of same.
3.4. The respondent submits that the complainant did not give four weeks written advance warning of her intention to return to work and this resulted in the delaying her return as rosters had already been assigned up to the new agreed date.
3.5. The respondent states that the complainant resigned from her position on 25 March 2011 without bringing her concerns to their attention.
3.6. The respondent submits that the complainant did not turn up for work on her first day back. When looking for an explanation the respondent was unsatisfied with the complaints attitude and this resulted in the written warning. I note that at the hearing a senior manager for the respondents company stated that the issuing of such a letter seemed "over the top" in the circumstances.
3.7. The respondent submitted written evidence that on the 16 February they had received a written complaint from hospital staff regarding areas that the complainant was responsible for. The respondent states that a meeting was arranged for the 17 February 2011 with a senior manager and the complainants supervisor to discuss this complaint and address it.
3.8. The respondent submits that arising from the meeting on the 17 February the complainant was issued with a specific written task list informing her of exactly what was required of her and that training was arranged. On the 21 February when the complainants work was checked it was noted that she failed to complete the task list.
3.9. The respondent states that, despite ongoing training, further written complaints were received from hospital staff over the following days. The respondent submits that in each instance the complaints were brought to the attention of the complainant and that further training and support was offered. The respondent submitted relevant copies of minutes and notes of meetings signed by the complainant.
3.10. The respondent contends that all of the above incidents do not amount to bullying or harassment but that they were necessary as they say that the complainants standard of work had to improve as the hospital requires a sterile environment, which was externally audited on a weekly basis.
3.11. The respondent stated that the uniform code was applied equally to all employees.
4. FINDINGS & CONCLUSION
4.1. 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 contends she was discriminated against from the time she returned from maternity leave on 4 May 2010 because she was not allowed to return to the job she had before she went on maternity leave.
4.3. The situation regarding a woman returning to work after maternity leave is set out in EU Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions which states:
"A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.". These provisions have been enshrined in the Maternity Protection Acts which state; "on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work ... in the job which the employee held immediately before the start of that period", and "job means the nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed".
It follows therefore that any departure from this entitlement constitutes direct discrimination of the woman concerned on grounds of gender.
4.4. Whilst a woman is entitled to return to work after maternity leave she is not entitled to insist that she returns to the exact same duties as she was carrying out before she went on maternity leave. However, the job must be "an equivalent post", which means, in looking at the wording in the Maternity Protection Acts, that the job should be consistent with the nature of the work which she was contracted to carry out and did carry out before going on maternity leave. The respondent contends the duties assigned to the complainant on her return from maternity leave comply with the required provisions. The complainant contends otherwise for the following reasons.
- She says her shift patterns were not consistent or predictable. Having examined uncontested documentation of the complainants rotas for the period of her employment in question, I am satisfied that her shifts were acceptably consistent and predictable and similar to those of the other workers.
- That she was asked to work in new areas of the hospital that she was not familiar with. I am satisfied from the evidence presented at the hearing that working in the new areas is consistent with the complainants previous job.
- She says that the standard of cleaning required was higher after maternity leave. The only evidence in this regard is that her standard of work was inadequate.
Having heard detailed descriptions of the complainants work before and after maternity leave I am satisfied that the complainant returned to the same job or an equivalent post.
4.5. In relation to the complainants contention that she was bullied and harassed by the respondent I have examined in detail all of the incidences that the complainant submitted as evidence in this regard (set out above in paragraphs 3.2 to 3.8.) I accept the respondent's evidence that the majority of the complaints regarding the complainants' work originated from medical staff and not the respondents' employees. I accept that the steps they took were reasonable to address the complaints and that they did so in a proper manner with the complainant. I find that their actions in relation to all of the incidents do not constitute bullying or harassment under the Acts.
4.6. In relation to the complainant's contention that she was told to sign a new contract, I prefer the respondents' version of events. Given the complainants standard of English I find it probable that a misunderstanding arose but that the respondent took every step to address this misunderstanding as quickly as possible, i.e. arranging a proper meeting with a translator and even allowing the respondents husband to attend. I also note the complainants' evidence at hearing that she did not mind the shorter working day (12 hour shifts had ceased under the new arrangements) as she was on the same rate of pay.
4.7. The only evidence presented by the Polish complainant on the grounds of race related to an incident when her Romanian supervisor directed her to wear white shoes as part of the uniform code. At the hearing the supervisor in question gave evidence which I found to be consistent and reasonable. She stated that the uniform code applied to all staff and is applied regardless of race. The complainant contends that she saw a Romanian staff member wearing black shoes. As the complainant cannot give evidence that the other staff member was not reprimanded, her evidence in this regard is mere speculation and I am satisfied that she has not established a prima facia case on the race ground.
4.8. In relation to all of the grounds being examined I note that the complaint gave evidence at the hearing that she did not know why she had been discriminated against, going on to state that she did not think she had been discriminated against because of her, nationality, because she had children or because she was a woman.
4.9. The complainant is claiming constructive dismissal. Section 2(1) of the Act defines a dismissal as including:
"the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so...."
In A Worker (Mr O) v An Employer (No 2) [2005] 16 ELR 132 the Labour Court extensively considered the circumstances in which this provision can apply. Here the Court said: -
"This definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 -2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the "contract" test where the employee argues "entitlement" to terminate the contract. The second or "reasonableness" test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
The contract test was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332 as follows:
"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance"
This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances the employee is entitled to accept the repudiation and consider him or herself dismissed. However not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract. This is a stringent test which is often difficult to invoke successfully.
There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then.
Finally, the authorities indicate that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case."
There is no suggestion in the instant case that the Respondent repudiated the Complainant's contract of employment. Rather, it is submitted, the Complainant was entitled to terminate her contract of employment by application of the reasonableness test. I find that respondent has behaved reasonably and given the complainant no justification to resign. The complainant was therefore not discriminatorily dismissed.
4.10. I conclude that the complainant received adequate support to assimilate her back into her job on her return from maternity leave and the respondent took reasonable steps to ensure that the complaint received the proper support, instruction and training when problems with her work performance arose.
5. DECISION
5.1 6.1 I have concluded my investigation of the complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
a) I find that a prima facie case of discrimination in relation to conditions of employment on the grounds of race, family status or gender has not been established and this element of the complaint fails.
b) I find that that a prima facie case of discrimination in relation to harassment on the grounds of race, family status or gender has not been established and this element of the complaint fails.
c) I find that that a prima facie case of discriminatory dismissal on the grounds of race, family status or gender has not been established and this element of the complaint fails.
____________________
Peter Healy
Equality Officer
13 September 2013