EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-048
PARTIES
Sinead Brady
(Represented by Eilis Barry B.L instructed by IHREC)
AND
Cavan VEC (EE/2012/551)
And
Virginia College (EE/2012/552)
(Represented by Mason Hayes Curran, Solicitors)
File reference: EE/2012/551 & 552
Date of issue: 10th March 2016
HEADNOTES: Employment Equality Acts Sections 6 (2) (a) as amended by section 4 the Employment Equality Act 2004 Conditions of Employment-Gender-Discrimination Pregnancy-Harassment-Victimisation.
1 DISPUTE
1.1 This dispute concerns a claim by Ms Bradythat she was discriminated against by her employer on the grounds of gender and pregnancy contrary to section 6 (2) of the Employment Equality Acts in respect of access to promotion and grading under the terms of Section 8 (1) (d).
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 18th October 2012 under the Employment Equality Acts. On 29th September 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Pat Brady, 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 and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on October 1st 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.
1.4 There are two respondents; Virginia College and what was then County Cavan VEC, (now ETB). However the case was presented as a single case and likewise the response to it. The VEC, (now ETB) is the de facto employer.
1.5 The complaint on the grounds of victimisation was withdrawn at the hearing.
2 COMPLAINANTS' SUBMISSION
2.1 The complainant is a qualified Guidance Counsellor holding an M.Ed. in Career Guidance and Counselling and separate postgraduate diplomas in Positive Behaviour Management, in Psychology and in Reality Focussed Brief Therapy. She has further training in relation to the management of bullying. She started work in Breifni College in 2005 as a Guidance Teacher. She transferred to Virginia College in September 2008.
2.2 The complaints fall into three broad categories, two significant strands of complaint and a third comprising a number of individual episodes. The first related to alleged harassment by her then Principal (henceforward K) initially during her tenure as a teacher in Breifne College, and continuing after her transfer to Virginia College in 2008 up until December 2011. The second main area concerns her treatment while on maternity leave in 2011 and 2012 mainly arising from proposals to make her post redundant and redeploy her to other teaching duties.
2.3 Thirdly, there are a number of specific episodes which she alleges indicate a ‘discriminatory bias’ on the part of Virginia College against pregnant employees.
2.4 Turning to the first category there were a series of examples of ‘inappropriate behaviour’ by her former principal, K which included his continuing to assert how he could assist her career. Detailed examples were given of serious incidents. However, the last in this sequence of incidents falls outside the time limits required by the Acts and in view of my conclusions below on this point further detail is unnecessary.
2.5 She further complains that despite being five months pregnant she had been put on ‘yard duty’ and felt exposed to danger in the course of a fight between students. Nothing was initially done until the matter was raised a second time with the Deputy-Principal.
2.6 The second batch of issues relates to the period of her pregnancy in 2011, the intrusions into her maternity leave, and the fact that the position she was offered following maternity leave was, in her submission, significantly different to the one she left. It involved either returning as a ‘class’ teacher of History and English or accepting some other, as at the time, unspecified redeployment to another school. Indeed she experienced some very considerable difficulty in getting further clarity on this point and eventually that option did not materialise.
2.7 Despite having to endure a difficult pregnancy she was contacted while on maternity leave about various aspects of a decision to make her post as a Guidance Counsellor redundant and require her to redeploy to other teaching duties for which she says she was not qualified.
2.8 In due course (May 12th 2012) the redeployment option was withdrawn. Indeed two days later she received something in the nature of an ultimatum to confirm that she would accept the ‘class teacher’ offer.
2.9 Despite stating on October 3rd that she would return to work ‘under protest and reserving my rights under my current contract as a permanent whole time career guidance teacher’ her health deteriorated to the point where, on medical advice she did not do so.
3 RESPONDENT'S SUBMISSION
3.1 The respondent noted that the original complaint in Form EE 1 related only to the harassment and victimisation in relation to the pregnancy and maternity leave and ‘other matters’. That form further stated that the discrimination claimed had been ongoing since the beginning of 2012. It stated that the ‘inappropriate behaviour’ alleged against K was outside the remit of the complaint and declined to call evidence in respect of the complaint against K, firstly because it said that the sequence of complaints was out of time and there was no continuum with those which were within time and also to spare the complainant any further trauma. The last incident submitted of by the complainant took place in December 2011.
3.2 It responded in detail to the allegations about the treatment of the complainant by both Virginia College and the then VEC.
3.3 The respondent accepts that the Principal SF made contact with the complainant in March and April 2012. It says that this was to communicate the difficulty that had arisen in relation to her post.
3.4 The Principal gave evidence that she acted in good faith and was concerned about the alternative possibility that the Complainant might learn of the development through third parties and become even more upset. There was detailed and conflicting evidence about the demeanour or behaviour of the parties at the meetings which is, in any event secondary to the main complaint.
3.5 The respondent submitted that the complainant was not harassed while she was on protective leave for the reasons set out above and when correspondence was received on August 17th 2012 requesting it to direct the correspondence to her union only it did so.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
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 extensive evidence presented at the hearing. I have to decide three key matters;
4.1.1 The first relates to the allegations that the complainant was subjected to sexual harassment by K mainly in the course of her employment in Breffni College, but also afterwards.
4.1.2 Related to 4.1.1 is whether the complained of acts there are within the time limits set out in the Acts.
4.1.3 The second matter concerns whether the decision to make her post redundant and the manner in which it was done represents discrimination on the gender grounds in that it was pregnancy-related.
4.1.4 Related to this is whether the communications with the complainant during her maternity leave were lawful and appropriate.
4.2 There were some other individual issues related the complainant being denied lunch breaks, the complaint about yard duty etc.
4.3 In relation to the first issue at 4.1, that of the alleged harassment by the former principal K. The respondent argued essentially that this aspect of the complaint was time barred and that there was no nexus with the later, Virginia College complaints. The last recorded contact with K was in December 2011. The complaint was lodged in November 2012, eleven months later. This was outside the six months time limit for the lodgement of a complaint but within the twelve months to which it might be extended for ‘reasonable cause’.
4.4 I note that the complainant was pregnant in 2011 and gave birth on February 3rd 2012. She remained on maternity leave until the start of the school year 2012 although the events from March of that year represent the second main strand of the complaint.
4.5 In relation to the test applied in extension of time applications under the Acts, the most commonly cited dicta are those of the Labour Court in Department of Finance v IMPACT. In considering the criterion to be applied as to whether reasonable cause exists, the Labour Court said it was for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. This imports a clear objective standard into the test. The Court continued:
“The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one but it must be applied to the facts known to the applicants at the material time.
While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.”
4.6 While the account given in evidence of harassment by K were harrowing I cannot find that the explanations for the delay in submitting the claim meet the test set out by the Labour Court to grant an extension of time and I do not do so. Likewise, this finding applies to the other individual complaints relating to yard duty etc.
4.7 The second and substantive matter concerns the related matters of how the complainant was contacted in the course of her pregnancy and the fact that her position was to be substantially changed before her return to work. The complainant gave evidence that she made it ‘very clear’ that she did not want to be contacted during her pregnancy.
4.8 I note the evidence of the respondent that the decision to make the complainant’s post redundant was completely unrelated to her pregnancy and was the result of decisions effectively made at national level as part of the Budgetary process. Indeed, the respondent says that her right to return to work was protected by the decision to offer her alternative employment which in the circumstances of the options available to the school were reasonable.
4.9 I accept that the Principal (who had herself recently returned from maternity leave) was motivated by the best of intentions and was in something of a dilemma. On the one hand she was handed a fait accompli by her superiors and yet had to prepare a timetable and make other arrangements for the new school year. She should never have been placed in such an invidious position and the HR department of the then VEC must surely have known that this proposed treatment of one of its employees on maternity leave would expose it to the consequences which have in fact followed. This was described by the respondent in its summary as an ‘unfortunate position’. Evidence was given that other options were considered. In fact they were not but the law requires more than this.
4.10 The complainant gave detailed direct evidence about the impact these events had on her well-being. She had difficulty being in the public eye, had trouble sleeping and was under medical supervision. She said that her job as a counsellor had meant a great deal to her and she became upset in the course of her evidence in characterising it as ‘her job being pulled away from her while on maternity leave’. Most seriously, ultimately the combined effects of the experience appear to have contributed to her not being in a position to return to work on the advice of her doctor.
4.11 Therefore I find as follows.
4.12 In respect of what I consider to be the key issue in this case; the revised terms on which the complainant was offered a return to work I take account of the following.
4.13 The Maternity Protection Acts 1994 and 2004 provide, inter alia, an entitlement for employees returning to work following a period of "protective leave" (which includes maternity leave and additional maternity leave) to return to the same or suitable alternative employment.
4.14 Section 6 (2A) of the Employment Equality Act is as follows (2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated. I address the meaning of ‘related to her pregnancy’ below.
4.15 The Employment Equality Acts, 1998-2004 provide, inter alia, that claims of discriminatory treatment on any of the nine prohibited grounds should with limited exceptions, be referred, in the first instance, to the Equality Tribunal. Section 101 of those Acts sets out specific circumstances restricting a complainant from following dual avenues of redress under, inter alia, those Acts and unfair dismissals legislation.
4.16 It does not place any restriction on claims which may also have a course of redress under the maternity protection legislation, in particular requiring a complainant to choose one avenue of redress over the other. I am of the view that had the Oireachtas intended to curtail an employee's rights in that respect it could and would have specifically legislated for same. As no specific restriction exists under either of the Acts, I am satisfied that I have jurisdiction to investigate this complaint.
4.17 In a line of authorities starting with the decision in C-177/88, Dekker v Stichting Vormingcentrum voor Junge Volwassenen [1990] ECR 1-3941 the Court of Justice of the European Union (formally the ECJ) has made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her sex.
4.18 The evidential bar is set at a high level. It is not open to an employer simply to aver that, in the case of a dismissal, for example, it was not pregnancy-related, as indeed it could and did in this case. For example in the case of Assico Assembly Limited v Corcoran (EED 033/2003) the Labour Court held:-
“Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.”
4.19 While that case related to dismissal the principle is very clear. But by way of extension in the context of this case the opportunity to avail of the normal procedures and channels to challenge what was a very significant change for the complainant were not available to her as she was on protected leave. Paradoxically, the efforts by the school to remedy this only succeeded in making the breach of her entitlement to a quiet period of maternity leave worse, whatever their intentions.
4.20 Then there is the fact of her being denied the right to return to the same position she left.
4.21 I am satisfied on the basis of the complainant’s submission, her qualifications for the post she left (which were very strong) and those for the post to which she returned (which were not) and her personal preferences that the option she was offered on return to work falls short by a very considerable distance from the position that she left.
4.22 She was to leave a post as a counsellor with the broad range of one-to-one interactivity with students to return to a classroom based role partly involving teaching a subject which she felt inadequately qualified to teach and had not taught before.
4.23 While the complainant saw this as being put under pressure to make a decision (actually to accept the decision already made) even if this was a matter that ended up in dispute, as noted above the prosecution and resolution of that dispute would not have been possible as the complainant was on a period of protected leave. I reject the respondent’s submission that this was ‘reasonable contact’.
4.24 Evidence was given by the HR Manager that every school lost a Guidance Counsellor. Even if it did a different situation obtains in relation to such proposed changes where the employee affected is on maternity leave, with an entitlement to return to the position she left, a consideration which should have been obvious to the HR Department, regardless of the provenance of the instruction to reduce posts.
4.25 The employer had an option to ‘freeze’ the change until the complainant was in a position to consider her situation and, if she saw fit in the event that she was unhappy about it, to challenge the proposal through the normal procedures. This is a basic principle of good industrial relations, to say nothing of equality law. Whether the proposed alternative was ‘suitable’ or not ought to have been a matter for discussion and resolution between the parties but this was not possible because of the complainant’s maternity leave. It is not for the employer to unilaterally determine what will constitute suitability without some engagement with the employee when she is in a position and willing to do so.
4.26 But for the purposes of this case obviously I find that the complainant’s rights were doubly breached by the entire handling of the matter; the decision to make the change, the handling of the process of communication with the complainant, and the making effective of the change without her agreement. The fact that the employer was under pressure from another source to effect the change while the complainant was on maternity leave cannot affect my assessment of whether, on its merits, it breached the complainant’s rights in respect of her entitlement to protected leave and to return to the position she left.
4.27 I also find that the denial of the complainant’s opportunity to raise reasonable objections to the proposal, or decision was a direct consequence of her pregnancy and it brings the entire matter within the definition of a pregnancy-related act.
4.28 In its legal submission the complainant referred to the decision in Von Colson and Kamann [1984] ECR 1891 and the principle that compensation related to the loss and damage sustained by a person injured as a result of discrimination on grounds of sex should be dissuasive and proportionate to the damage suffered, and act as a disincentive to future breaches of the act.
5. DECISION
5.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that;
· The case against K, and the individual complaints other than that related to the return to work fall outside the time limits and therefore I make no findings on them. However I recommend that the respondent review its processes for avoiding and addressing such incidents in the future.
· I find that the complainant was discriminated against by the respondent (which for the following purposes I define as Cavan ETB) on the grounds of gender in relation to the basis on which she was offered a return to work and the handling of that matter. I order the respondent to pay the complainant €40,000 in compensation for the discriminatory treatment suffered. This award represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element related to remuneration, and is therefore not taxable.
· I order that in implementing such decisions of the Minister or Department of Education and Skills at local level in the future the respondent should ensure any proposals for change are ‘equality proofed’ for compliance with the legal rights of any employees who may be affected and such steps taken as are necessary to protect the position of teachers (or any employee) in the position of the current complainant on protected leave.
· I recommend to the Respondent that this order be brought to the attention of the Department of Education and Skills.
_______________________
Pat Brady
Equality Officer
10th March 2016