EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-015
PARTIES
Sean Rooney
AND
St Catherine’s Association
(Represented by IBEC)
File reference: EE/2014/417
Date of issue: 2nd February 2016
HEADNOTES: Employment Equality Acts – Gender – Conditions of Employment
1. DISPUTE
1.1. This dispute concerns a claim by Mr Sean Rooney that he was discriminated against by St Catherine’s Association on the grounds of Gender contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts.
1.2. The complainant referred a claim to the Director of the Equality Tribunal on 30th July 2014 under the Employment Equality Acts. On 29th October 2015 in accordance with his powersunder section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Pat Brady an Adjudication Officer/Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director General 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 Employment Equality Acts and as part of my investigation I proceeded to a hearing on November 3rd 2015.
1.3. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2. BACKGROUND
2.1. The respondent operates a special needs service in Co Wicklow where the complainant is employed as a relief care worker. On occasion he is required to ‘sleep over’ at one of the cottages where service users stay.
2.2. On July 7th he was told that he would be moving from his then location to another, with a different attendance requirement which he could not fulfil because of his college commitments.
2.3. The reason given, and this was not disputed was a requirement that for the future all sleepover staff in the facility would have to be female to cater for the needs of a female service user.
3. COMPLAINANT’S CASE
3.1. Following the communication that he was to be moved the complainant had a number of meetings with management of the centre. In particular MY repeated that sleepover staff would have to be female in the future to take account of the intimate care needs, specifically associated with menstruation.
3.2. The complainant says that it was a well established practise to have male staff caring for the female client in question, on a part time basis for the previous two and a half years and more recently on a fulltime basis for eight months.
3.3. In addition the client in question does not require actual ‘hands on’ care and merely needs to have her attention drawn to the need to attend to her intimate care. Also it has happened on occasion since the complainant lost access to the sleepover shift that a male employee has done it.
3.4. The change resulted in loss of income to the complainant over a period due to the loss of the sleepover allowance. It is paid at the rate of 9pm to 11pm €13.12 per hour, 11pm to 7am €8.65, and 7am to 8am €13.12; a total of €107 72 per shift.
4. RESPONDENT’S CASE
4.1. The respondent says that in fact the complainant did not move to the new location and that all that happened was a conversation about it happening. It also says that he did not lose any hours.
4.2. Further the complainant is not a qualified Social Care worker and was on a relief contract and HIQA stipulates that a qualified person be working at all times with an unqualified social care worker and that this brought about the need for the change.
4.3. MY is the manager who took the decision. She is a Registered General Nurse with a qualification in Intellectual Disability but is employed as an administrator, rather than a clinical manager. In her direct evidence she said that for reasons associated with the dignity of the client, her personal and intimate care issues etc she needed access to a female worker at night.
4.4. However she said that the service user in question had no issues about being cared for by male staff.
5. FINDINGS AND CONCLUSIONS OF THE ADJUDICATION OFFICER
5.1. I have to decide if the complainant was treated in a discriminatory manner on the grounds of his gender. 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.
5.2. That decision is made easier insofar as the respondent has not disputed that the reason for the change was gender-related but has sought to justify this on the basis of service needs. While the position in the Acts is quite clear it is also noted that the respondent tolerated the practise of having the complainant ‘sleepover’ for quite some time without incident, it placed no restrictions on his role at the point of recruitment nor at any time sought to provide him with any additional training in respect of any perceived shortfall in his skills for attending to the service user’s needs.
4 DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that the complainant has established a case of discrimination in relation to conditions of employment on the gender ground, and I uphold the complaint.
I award him €7,500. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
____________________
Pat Brady
Adjudication Officer/Equality Officer
2nd February 2016