Complainant

Respondent

Anonymised Parties

A Paramedic

A health service provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969

CA-00002748-001

22^nd February 2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994

CA-00002748-002

22^nd February 2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998

CA-00002748-003

22^nd February 2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act 1998

CA-00002748-004

22^nd February 2016

1         The Complainant was in dispute with the Respondent under the Industrial Relations Act 1969 in relation to the refusal of the Respondent to grant him a career break.

2         The Complainant had made a complaint that the Respondent had not notified him in writing of a change in the terms and conditions of employment in accordance with the provisions of Section 5 of the Terms of Employment (Information) Act 1994.

3         The Complainant had made a complaint that the he had been discriminated against and treated less favourably in relation to his conditions of employment by the Respondent by reason of his age (the ‘Age Ground).

The Complainant was employed by the Respondent from 24^th October 2011 to 27^th March 2016.     The complaint was presented to the WRC on 22^nd February 2016.

The Complainant submitted the following in relation to his dispute and complaints under the 3 Acts.

The Complainant said that all the matters that were the subject of his dispute and complaints concerned the refusal of the Respondent of his application for a career break.      

The Complainant said that he applied for a career break of at least 2 years in late October/early November 2015.   The Complainant said that he was non rostered.   He said the reason for his application was that he wanted to further his career and study in the UK.

He said that he applied to his named then Line Manager, who informed him that it was unlikely he would get the leave of absence and that he would get further advice in that respect.

The Complaint said that he took his case through the Respondent’s Grievance Procedure, but without success.

The Complainant said that he had heard of others over the years, who received career breaks, but it was refused to him and he believed this was unfair and discriminatory.

The Complainant said that in other areas of the Respondent employment, career breaks were granted and permitted, but in the area he was in they were refused (a ‘blanket’ refusal) and he believed this was unfair, unjust and discriminatory.

The Complainant submitted the following in relation to the specific complaints under the 3 Acts.

Industrial Relations Act 1969:                                                                                                                            

 The Complainant submitted that he was treated unfairly in relation to his application for a leave of absence and he sought a recommendation under the Act to that effect.

Terms of Employment (Information) Act 1994:                                                                                            

The Complainant said that he had never been specifically informed in writing by the Respondent that his grade of employee would be denied career breaks and he submitted that this was in breach of the requirements of Section 5 of the 1994 Act in relation to notification of changes.

Employment Equality Act 1998:                                                                                                                            

The Complainant stated in his Complaint Form that he had been discriminated against by reason of his age and that the Respondent had treated him unlawfully by discriminating against him in conditions of employment.   The Complainant confirmed that this referred to the refusal to him of his application for a career break,

The Complainant had made no written submission in relation to the Equality Complaint prior to the Hearing on 21^st July 2016 and he made no submissions in relation to it at the Hearing, save for that referred to above.   The Complainant was afforded a 2 further weeks to make any submission he wished to make in relation to the Equality Complaint in writing.     Following a further reminder the Complainant submitted the following on 8^th August 2016.

“I am sending this email in relation to you requesting a written statement concerning my complaint covered by Section 77 of the Employment Equality Act 1998.

I would like to have it investigated why some people with (the Respondent) have been granted Career Breaks with similar circumstances to mine, yet I have been refused a Career Break. It seems to be a case of one rule for one person but a different rule for another.     Under the Employment Equality Act all people should be entitled to the same equal treatment and consideration and not be discriminated against.   However, I feel this is not the case with my situation.”

This is the entire extent of the submissions made by the Complainant in relation to the complaint under the Employment Equality Acts.

The Respondent was denying and rejecting the claim and complaints.   The Respondent said the cases that were the subject of the hearings were under the Industrial Relations Acts, the Terms of Employment (Information) Act, and the Employment Equality Acts and related to the Complainant resigning from their employment for personal reasons after being refused a career break and then making claims and complaints to the WRC after exhausting the internal Grievance Procedure.

The Respondent said that they believe the claims and complaints lodged are unfounded and they deny the allegations under the 3 Acts.

The Respondent said that in relation to the complaint under the Industrial Relations Act it should be noted that as of 27^th March 2016 the Complainant is no longer and employee of theirs and thus has removed himself from the Grievance and Dispute Procedure under the Industrial Relations Act as he is no longer ‘A Worker’ as defined by Section 4 of the 1946 Act as no contract of service currently exists and accordingly no ‘trade dispute’ as set out in Section 3 of the Industrial Relations Act as this relates to “any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment of any person.”

The Respondent said that with regard to the complaints under the Employment Equality Acts it should be noted that no equality or discriminatory issue or argument had been put forward by the Complainant during the Grievance Procedure and accordingly the Respondent have no knowledge of any such allegations relating to the 9 grounds as set out in the Acts.

The Respondent said that for personal reasons the Complainant requested a career break, which was refused by National Management in late 2015, due to staffing constraints.

The Respondent said that as the Complainant only qualified as a Paramedic in September 2013, his transfer request for an assignment of choice was down the pecking order on the nationally agreed transfer list and as such no change would be possible for the foreseeable future.   Accordingly, the Complainant sought the career break to move to the UK to study, which was and is a personal choice as no Advanced Paramedic course exists with the Service.

The Complainant then evoked the Grievance Procedure, in which his request was refused at Stages 1, 2 & 3 of the Process.   The reason for the refusal was the detrimental effect granting it would have on service delivery; especially as the Area the Complainant worked in is under resourced at Paramedic Grade.  The Respondent said the rationale for refusing a career break was clearly communicated during all stages of the Grievance Procedure.     The Respondent said no Manager could reasonably approve a career break to a front line member of staff that would reduce staffing levels and increase overtime costs as they would be unable to replace a job lost to a career break.

The Respondent said the Complainant, while appealing his grievance decision through the process, (including to the WRC) resigned from their employment in March 2016.   At that time he had also looked for other types of leave, including study leave making it very clear that he was going to the UK to study.

The Respondent said it is their position that no career break can be approved for front line operation staff, this being decided upon by National Management Team including the National Director.   They said the rationale is quite simple as approval of career breaks would have a detrimental effect on service delivery and lead to a further reduction in staffing levels at a time when they are under resourced in terms of staffing requirement and unable to meet all rostered shifts.   Such approval would also have a detrimental effect on the pay budget as if possible, to fill roster gaps this would have to be on double time, which they are precluded from doing due to strict budget control frameworks in the employment.

The Respondent said that their terms and conditions document clearly states that the granting of a career break may be refused where it would have a detrimental effect on service delivery and therefore there is no automatic right to it.     It is very clearly stated by the Respondent that there is no automatic right to a career break.

The Respondent said that in September 2015 they had identified a deficit of approximately 167 paramedics to full meet current service delivery requirements, leading to significant shortages in all areas and significant investment in recruitment over a number of years are required to deliver the required level of staffing.     They said that this workforce deficit is now the subject of a longer term plan including escalation of training and recruiting 96 trainees in 2016.   However the lead time for a paramedic to be fully qualified is 2 years.     They said these figures merely relate to existing rosters and do not take account of the recently published capacity review that calls for an additional approximately 400 posts to meet future demands and further requiring more resources, further exacerbating the situation.

The Respondent said that their position is that extensive engagement has taken place with the Complainant under the Grievance Procedure, including exhaustion of all internal stages, that did not alter the original decision not to grant a career break due to clear and recognised service delivery reasons.   In their engagement with the Complainant the Respondent it was very clear that he wanted to go to the UK to study as he was unwilling to wait for options to emerge, hence his request for a career break or any other type of leave, including study leave, which was not possible.

The Respondent said it is very clear and the Complainant was made, and is fully aware, that other colleagues have been refused career breaks and his case is not an isolated one as his area alone have refused 6 requests from paramedics in the last 2 years and overall approximately 10 nationally.   Overall only 3 career breaks have been approved in the service in recent years, all in 2013, to non front line staff, including one clerical post and one in a post (regional controller) that no longer exists and was open for redundancy.   These occurred at the time of the incentivised career break scheme where pressure was exerted to reduce non front line numbers; however there is absolutely no way that those persons could be seen as comparators to a front line Emergency Paramedic, who have been consistently refused career breaks in the Service.   It is also the case that Stage 3 decision makers have been responsible for the refusal of approximately 40 career break application for midwives in 2013 for the same reasons as occurred with paramedics.

The Respondent referred to similar cases that had been the subject of Adjudication or Rights Commissioner Decisions in support of their position.

The Respondent said the Complainant in his complaint to the WRC states: “I have heard of others in the (employment) who have been granted career breaks and it has been a custom and practice to grant career breaks over the years.” The Respondent said that as clarified by an FOI request to the Complainant he is aware that 3 members of staff in the Service got career breaks in 2013, none of whom were comparable front line emergency staff and as such were taken in accordance with the Career Break Scheme.     The Respondent said that accordingly assertions made ignore the reality of the Service the Complainant worked in, until he chose to resign and end his contractual relationship to pursue his own career goals in the UK.

The Respondent said that no change occurred in the Complainant’s terms and conditions of employment and that this new complaint submitted to the WRC is at best highly inaccurate.   The Complainant’s written contract of employment from 2013 clearly stated the purpose of his job, the requirement to comply with policies, the requirement to abide by staff rules and also be bound by the Respondent Terms and Conditions of Employment.   The Terms and Conditions Handbook clearly sets out that career breaks are discretionary in nature and can only be approved where there is no detrimental effect on service, which would clearly not be the case in this instance.     The Respondent said it is clearly set out in Section 7 of the Terms of Employment (Information) Act 1994 that an employee may present a complaint to an Adjudication Officer that her or his employer has contravened Section 5 of the Act, Notification of Changes.   However the Respondent said there has actually been no change to the 2013 written contract of employment or policies, collective agreements etc. and as such there was no requirement to provide any statement in accordance with Section 5 of the 1994 Act.

The Respondent said that with regard to the other new complaint of alleged discrimination, notwithstanding the fact of they not being aware of any equality issue or case to answer under the     9 grounds as listed in 1998 Act, clearly there has been no unreasonable conduct by the Respondent towards the Complainant.   The Respondent take issues of equality and discrimination very seriously and strongly refute any wrongdoing in that regard.     The Respondent said that all decisions taken with career break applications have to take due regard to service delivery of an emergency service currently under resource pressures.

The Respondent said the Complainant is aware that 3 staff in the Service were given career breaks in the past but none of them were front line paramedics, where significant shortages exist, highlighted by detailed external reviews.   Of these 2 are female and 1 is Male equating to 0.2% of staff in the Service on career breaks.   The staff categories are: Management, Ex-Controller and Administration.

The Respondent said that the Complainant appears to be suggesting that the fact of other staff in the Service getting career breaks but not him is and of itself discriminatory; the Respondent said they cannot see how circumstances are similar given his job of a Paramedic.   The Respondent said the Complainant is also aware that other paramedics in similar circumstances have been refused career breaks and in this is not in dispute due to the staffing challenges.

The Respondent said it further appears the Complainant is also suggesting that all of the Respondent staff should be allowed career breaks or else it is discriminatory.     The Respondent said this does not match with the fact that overall only 1.1% of their staff on average were allowed career breaks and in the Complainant’s category of the Complainant (patient and client care) the average is 0.5%.

The Respondent said that the fact of more female staff being granted career breaks is related to the fact that 78.9% of employees are female.

The Respondent said that they do not accept that the Complainant or other paramedic colleagues refused career breaks were discriminated against.  

The Respondent further submitted that the Complainant has not actually provided examples of discrimination, in practice his complaint is an industrial relations complaint and not an equality one.    

The Respondent submitted that none of the claims and complaints are well founded and they should be rejected.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

In relation to the preliminary issue raised by the Respondent in respect of the claim under the Industrial Relations Act I am completely satisfied that the Complainant is a ‘Worker’ as defined by the Industrial Relations Acts and accordingly he is entitled to have his claim under the Industrial Relations Act heard and recommend on. The Respondent submissions in that respect are rejected.

I note it is explicitly clear that the granting of a career break is discretionary and the granting of an application for a career break is not ‘automatic’.     This is the case in all employments where career breaks can apply and indeed it could not be otherwise.     No employer could possibly be expected to automatically grant any application for a career break regardless of the effects or consequences for the employment. In particular no employer could possibly be expected to approve a career break in circumstances where such a career break would have severely detrimental effect on the business or service provided by that employer and again this is a fact that that must and certainly should be known by the Complainant.   The Complainant does not seem to accept this very basic fact applies in his case and that he was not automatically entitled to a career break just because he applied for one and this view appears to be at the heart of the Complainant’s grievances, claims and complaints.

The Complainant must and certainly should be aware that the reasons advanced by the Respondent are genuine ones and that it simply was not possible due to such facts such as the recruitment embargo, understaffing in the Service, that length of time it takes to fully train a paramedic to grant his application for a career break.   It is unreasonable for the Complainant to not accept that it simply was not possible for the Respondent to grant his application for a career break.

I am completely satisfied and I find that the sole and only reasons that the Complainant was refused his application for a career break was the very valid ones referred to above that it would have a severely detrimental effect on the Service, would adversely effect service delivery, would reduce staffing levels etc etc and accept and find that this is a perfectly reasonable reason for such a refusal.

Accordingly I must find and conclude that the claim under the Industrial Relations Act and the complaints under the Employment Equality Acts are not well founded.

I am satisfied and I find that there was no change in the particulars of the written statement / contract of employment provided to the Complainant in 2013 in relation to Career Breaks.   The terms and conditions in relation to career breaks, including its discretionary nature remain unchanged.

In relation to the complaint under the Employment Equality Acts I note the following.

The ‘Burden of Proof’ requires anyone taking a claim under the Employment Equality Acts to establish facts of significant significance, by way of evidence, that they have been unlawfully discriminated against -   the onus is on the complainant to make their case.   If the complainant can demonstrate that such facts exist, they have established a presumption of discrimination, i.e. a so called prima facie case - it is then for the respondent employer to prove otherwise i.e. to rebut the inference of discrimination established.

In the case of the HSE North Eastern Area -v- Sheridan the Labour Court described the test for a complainant as in practice having 3 steps:

1. The complainant must prove the primary facts relied upon.
2. The Court must be satisfied that those facts are of sufficient significance
3. If the presumption of discrimination comes into play the onus then shifts to the employer   to prove otherwise

In establish a case of discrimination a complainant must overcome this ‘Burden of Proof’ as stated by the Labour Court in Melbury -v-   Valpeters:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit.     This requires that the Complainant must first establish facts from which discrimination may be inferred.   What these facts are will vary from case to case and there is no closed category of facts which can be relied upon.     All that is required is that they be of sufficient significance to raise a presumption of discrimination.     However, they must be established as facts on credible evidence.   Mere speculation or assertions, unsupported by evidence, cannot     be elevated to a factual basis upon which an inference of discrimination can be drawn.   Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

While establishing facts of “sufficient significance” the individual complainant taking the complaint/case must also establish;

1. That she or he is covered by the discriminatory ground (e.g. age ground)
2. That the treatment alleged has actually occurred
3. That the treatment was less favourable than that afforded to another person not covered by the protected ground.

There are 9 specific prohibited grounds of discrimination under the Equality Acts as follows:

1. The Gender Ground
2. The Civil Status Ground (formerly martial status)
3. The Family Status Ground
4. The Sexual Orientation Ground
5. The Religion Ground
6. The Age Ground
7. The Disability Ground
8. The Ground of Race (includes race, colour, nationality or ethnic or national origins)
9. The Traveller Community Ground

In his Complainant Form to the WRC the Complaint states:

• I say that I have been discriminated against by reason of my Age     -and-
• I say the Respondent treated me unlawfully by discriminating against me in conditions of employment

Also on his Complaint Form the Complainant stated: “I know of (Respondent) employees who have been granted Career Breaks who are older and more senior in status”.   This is the sole and only submission from the Complainant in relation to the Age Ground, although he was afforded every opportunity and indeed was invited to make any submissions, either verbally or in writing, he wished to make in relation to the complaint under the Employment Equality Acts.  

Accordingly I was presented with no evidence in support of the contention that the Complainant was discriminated against on the grounds of age (or indeed any of the other 8 grounds contained in the Equality Acts) and plainly the Complainant has not established the burden of proof necessary to establish a prima facie case and shift the burden of proof to the Respondent..     On that basis I must find and conclude that the complaint of discrimination on the Age Ground is not well founded and it is rejected.                  

Based on the above findings and conclusions the following are my recommendation and decisions in relation to the claims and complaints under the 3 Acts.

Industrial Relations Act 1969 Recommendation:   CA-00002748-001:                                              .

Based on the above findings and conclusions I do not accept that the Complainant was treated unfairly or unreasonably in relation to his application for a career break and accordingly I do not see merit in the claim under Section 13 the Industrial Relations Act 1969 and it is rejected by me.

Terms of Employment (Information Act 1994 Decision:   CA-00002748-002:                                    .

Based on the above findings and conclusions I declare that there was no change in the particulars of the written statement / contract of employment of the Complainant in relation to career breaks as submitted by the Complainant.   Accordingly I declare that the complaint by the Complainant under Section 7 of the 1994 Act in respect of notification of changes in accordance with the provisions of Section 5 of the 1994 Act is not well founded; it is rejected and it is not upheld.

Employment Equality Act 1998 Decision:     CA-0002748-003 & CA-00002748-004:                                

. Based on the above findings and conclusions the following are my decisions in relation to the complaints under the 1998 Act:

• The Complainant has failed to establish a prima facie case of discrimination in respect of his conditions of employment on the age grounds

The Complainant’s complaints under the Employment Equality Act 1998 fail in their entirety and they are entirely misplaced.