EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Elizabeth White P5/2013
-appellant
against the recommendation of the Rights Commissioner in the case of:
Three Steps Limited
-respondent
under
MATERNITY PROTECTION ACT 1994 AND 2004
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B. L.
Members: Mr. N. Ormond
Mr P. Trehy
heard this appeal at Dublin on 13th November 2014
Representation:
_______________
Appellant: Ms Leigh Hamilton B.L. instructed by,
Kelly Caulfield Shaw, Solicitors,
1 Chapterhouse, Friars Mill Road, Mullingar, Co Westmeath
Respondent: Ms M.P. Guinness B.L. instructed by,
O Mara Geraghty McCourt, 51 Northumberland Road, Dublin 4
This case came before the Tribunal by way of an employee appeal of the Rights Commissioner Decision ref: r-126295-mp-12/JT under the Maternity Protection Act 1994.
Respondent’s Case
The respondent is a full-time residential unit for young people aged 8-18 years with difficulties. The young people have complex needs and present with challenging behaviour which can include physical aggression. For every young person one member of staff is allocated to link in with them throughout the day; this includes personal care, activities, supervision. The appellant is one of the social care staff linked to a young person. There has been a number of staff injuries as a result of a young person’s physical aggression.
On the 11th of June 2012 the residential unit manager was informed that the appellant was pregnant. Due to the associated risks of the appellant’s role immediate action was taken to allocate the appellant low risk activities. Consequently on the 13th & 14th of June the appellant was sent to the hospital with another staff member to accompany a young person in the respondent’s care. The appellant did some of the assistant manager’s duties while he was on leave on the 20th & 21st of June. All throughout this time the manager was trying to find alternative low risk work for the appellant.
On the 21st of June the risk assessment was completed in consultation with the appellant. It was concluded that the working environment posed a significant risk to the appellant. Preventative measures could not have been put in place as the risk comes directly from the young person. There was young people with challenging behaviour and/or physical aggression in every premises the respondent operated. The office administration was already being carried out by two people and the social care workers did their own paperwork relating directly to their interaction with the young person that day; this could not be completed by another staff member. The manager consulted HR for any alternative options outside of the residential unit.
On the 21st of June the appellant was informed that no low risk work could be sourced for her and she would consequently have to go on Health & Safety leave. The appellant was upset and asked the manager to look again for alternatives. As no alternative work could be sourced it was confirmed in a letter of the 3rd of July that the appellant would have to go on H&S leave.
Previously another pregnant member of staff continued working but not in her normal duties; she worked on a short-term research project into opening up an adult service within the organisation. She completed her duties in the office side of the unit which is separated from the residential side.
The manager does not recall offering the appellant a normal working shift on the 17th of June. A number of staff did leave the respondent’s employment in or around June/July 2012 but the manager is not aware of the exact dates and numbers.
On foot of a phone call from the residential unit manager the HR Manager checked with all of the other units within the organisation and the centralised administration office for alternative work for the appellant; none was available.
Appellant’s Case
The appellant informed the assistant manager that she was pregnant on the 11th of June 2012. The appellant was removed from ‘floor work’ immediately. She accompanied a young person to hospital the following week and undertook some of the assistant manager duties the week after and was on Health & Safety leave for the remaining days.
The appellant’s risk assessment was completed on the 21st of June 2012. The appellant had been informed that she was on Health & Safety leave but it was never explained to her. She was never informed that alternatives were being explored on her behalf. The appellant was prepared to do any administration work or household work that arose in the unit eg cooking, cleaning. The appellant believed that due to staff losses and temporary staff there would be a large volume of administration work she could have done.
The appellant accepts that the risk could not be eliminated to provide her with a safe working environment while pregnant. There are other low risk units but the appellant accepts there are still incidents, but to a lesser extent.
The appellant gave evidence of her loss and attempts to mitigate her loss.
Determination
On the evidence given at the hearing the Tribunal find that the respondent acted correctly in removing the appellant from any risk. Any alternative work available would also have put the appellant at risk. In the circumstances the Tribunal accepts that there was no position available to which the Appellant was suited that was without risk to her. In the circumstances the respondent acted correctly and the appeal against the decision of the Rights Commissioner ref: r-126295-mp-12/JT under the Maternity Protection Act 1994 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)