EMPLOYMENT EQUALITY ACTS
DECISION NO: DEC-E2017-029
PARTIES
A Healthcare Assistant
(Represented by Ms. Maeve Cox BL instructed by Tarrant and Tarrant Solicitors)
AND
A Nursing Home
(Represented by Mr. Eoin Gallagher BL instructed by B.J. O’Beirne & Co. Solicitors)
File reference: et -156591-ee-15
Date of issue: 28 April 2017
HEADNOTES: Employment Equality Acts Sections 6 & 8, - Gender & Family Status / Discriminatory Dismissal.
1: Background
This dispute concerns a claim by Ms.G that she was discriminated against on the grounds of Gender and Family Status culminating in a Discriminatory Dismissal by employer Respondent X in their Nursing Home.
The Complainant referred a claim to the Director of the Equality Tribunal on the 22nd May 2015 under the Employment Equality Acts.
On the 7th February 2017, in accordance with the powers under section 75 of the Employment Equality Acts, the Director General delegated the claim to me, Michael McEntee, Adjudication / 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 Employment Equality Acts and as part of my investigation I proceeded to an initial hearing on the 21st February 2017.
2: Summary of the Complainant’s Submission
2:1 Opening Note: Harassment element of the Complainant’s claim.
In the Complainant’s evidence considerable reference was made to alleged Harassment of the Complainant. This was not a Ground chosen on the original claim form dated 22nd May 2015. In deciding whether or not to include this new material as part of the claim I had regard to the legal precedent set out by the High Court in County Louth Vocational Educational Committee v The Equality Tribunal, (Unreported, High Court, 24th July 2009, McGovern J).
Judge McGovern stated:
"6.2 I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
6.3 Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."
It is clear from this judgement that in advancing a claim under the Acts a Complainant is not limited solely to what is contained in the originating form. I have to consider if the new incidents go beyond "the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time".
As the evidence regarding Harassment was linked completely both on grounds of time and in particulars, to the Gender, Family Status and Discriminatory Dismissal elements as set out on the original Claim form of the 22nd May 2015 I decided to allow it form part of the proceedings. It was in my view the furnishing of further and better particulars to aid the consideration of the nominated claims. I did not consider that it formed a separate claim; which would, in any case, have been out of time.
All parties present at the hearing included the Harassment element without comment.
2:2 The Complainant commenced employment as a Healthcare Assistant on the 7th April 2014. She became pregnant but unfortunately was diagnosed with an ectopic condition on or about the 16th October 2014. This necessitated surgery and she was off work for a period of approximately five weeks.
On her return in late November the Principal/Owner (Mrs A) of the Respondent Home made belittling remarks to her in relation to her absences and alleged general inability to carry out her duties.
In the latter half of 2014 the Principal (Mrs A) verbally terminated the employment of the Complainant but after discussions with the Director of Nursing (Ms.B) the Complainant was “given another chance”.
In January 2015 the Complainant discovered she was pregnant again but was anxious about telling her employer. She informed the Director of Nursing (Ms B) of her condition some weeks later. On or about the 25th January 2015 the Complainant fainted at work and was sent to hospital by ambulance. It was alleged that the Principal (Mrs A) was very negative to the Complainant at this time and strongly suggested that the Complainant was not up to the job and would be better off on Social Welfare.
The Respondent issued a letter dated the 29th January 2015 to the Complainant declaring her redundant due to a downturn in business at the Home. Three Health Care Assistants left the Home, two Irish nationals were made redundant (the Complainant and a colleague) and one non Irish national who was returning home to her native Country. It was claimed that the principal of last in /first out was applied in a very haphazard manner, if at all.
In summary the Complainant suffered discrimination on the grounds of Gender and Family Status and was the subject of a Discriminatory Dismissal on the grounds of her pregnancy.
It was also maintained in evidence that she had been subject to Harassment although his was not on the original claim form dated 22nd May 2015.
2:3 Extensive legal precedents were quoted by the Complainant’s legal Representative in support of the case for Pregnancy and Gender related discrimination.
3: Summary of the Respondent’s Submission.
3:1 The Respondent operates a Nursing Home in Leinster. The Complainant was first engaged on a style of internship but was given a paid position from the 1st June 2014 subject to 90 day probation period.
On the 2nd of September 2014, she was informed that her probation had not been successful and that she was being let go. She appealed this decision and the Respondent agreed to keep her on.
At the end of September 2014, the Complainant informed the Director Nursing (Ms.B) that she was pregnant. Unfortunately she suffered an Ectopic Pregnancy and was off sick until the 5th November 2014. Through all this time the Respondent was as considerate and caring as was possible for the Complainant.
The Respondent Home experienced a marked turn down in patient occupancy in January 2015. It was necessary to reduce the staff complement until such time as patient numbers picked up again. The Complainant was made redundant on this basis. Length of service was the determining factor.
It was purely patient occupancy related decision and the pregnancy of the Complainant
was never a factor in the process.
Any allegations of Harassment of the Complainant by Mrs. A were absolutely denied.
The track record of the Respondent is exemplary in regard to pregnancy issues with other staff – written evidence was given to this effect by other staff members.
In summary the Complainant is obliged in keeping with Section 85 (A) of the Employment Equality Acts to establish a prima facie case of discrimination. She has failed to do this and the case should fall.
4: Findings and Conclusions:
4:1 Burden of Proof.
In this regard, I consider that it is appropriate for me to consider the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that “… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent …”.
The Labour Court continued
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 those 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.
4: 2 Key Questions in this case
The key question in the case at hand is whether or not acts of discrimination on the Gender and Family Status grounds took place resulting in a Discriminatory Dismissal of the Complainant. ?
4:3 Consideration of the evidence presented
Considerable oral evidence was given by the Parties.
The key witnesses for the Respondent were the Principal, Mrs. A and the Director of Nursing, Ms. B. The Complainant gave direct oral evidence. All witnesses were subject to cross examination by the Legal Representatives of the parties. The evidence of all parties was credible although the Complainant was inclined to be a bit vague over some key details /dates.
The Home is HIQUA certified and Ms. B , the Director of Nursing, would have responsibility for the compliance of the Home with all regulatory requirements. At the time of the Hearing she no longer worked for the Respondent. She had left in February 2015 to take up another senior position in a different Nursing Home more convenient to her home. She was probably the nearest thing to an Independent witness that was available. I found her evidence to be of a good quality.
In her evidence, which was open to cross examination by the Complainant’s legal Representative, she did not give grounds that might point to any strong presumption of Discrimination on Family Status or Gender Grounds. Likewise Harassment of the Complainant by Mrs A. was not evident from the evidence given.
It was not contested by the Parties that the Respondent Home had performance issue with the Complainant in late 2014 and her continued employment post her probation period had been largely due to her appeals to be given “another chance”.
The employment appeared to have proceeded without any difficulties until the first pregnancy which unfortunately ended in the ectopic incident. The evidence from the extensive copies of text messages passed between the parties did not point to any egregious discriminatory behaviour by the Respondent.
The references to “Being Better off on Social Welfare” were contested but it was clear that the Respondent had discussed with the Complainant her overall domestic arrangements, family set up/ availability of Social supports etc. However I found it hard to read anything into these other than the concern of an employer for a staff member undergoing a difficult time with a pregnancy and it appeared domestic relationships.
The situation that prevailed post the return to work of the Complainant (after Pregnancy No 1) was possibly open to misunderstanding by the Complainant. However the Principal Mrs A. and the Director of Nursing Ms.B would have a high level of medical knowledge relating to post-operative issues and reference to “taking care” and monitoring hours of work can be seen in this light during the period of November 2014 to January 2015. The fainting incident of the 24th January and the reactions of the Respondent can also be seen in this light. In oral evidence the Complainant explained the collapse/fainting as due to having had no breakfast before coming to work. However the Respondent’s written submission refers to the Complainant telling colleagues she was pregnant at the time of the fainting incident.
In this light, the timing of the Redundancy/Termination letter on the 29th January, coming so close to the 24th January fainting incident and the admittance to hospital of the Complainant was a cause of concern to me.
The Respondent maintained that the Redundancy/Lay Off decision had been formulated much earlier. The Health Service Executive expenditure restraints and the difficulties with the funding of long stay care in Nursing homes – the Fair Deal Package -were well known.
The Redundancy of the Complainant was parallel with the Redundancy of another Health care Assistant and the return home abroad of another, a foreign National.
At this time two new non Irish Nurses were engaged by the Home. They worked as Health Care Assistants while they waited for their paperwork to be cleared by Bord Altranais /Nurses Registration. The Respondent explained that the recruitment of qualified Nurses was an absolute priority for all Nursing Homes (to meet HIQUA Requirements) and had to be seen as completely apart from any issues with Health Care Assistants. It was explained that working as Assistants while waiting for Irish Registration was the norm in these situations.
The Respondent maintained at all times in oral evidence that they were not made aware of the Complainant’s Second pregnancy until she returned to collect outstanding paperwork in March 2015.
The Complainant stated in evidence that she had told Ms. B in early to mid January. Ms. B denied this.
It was maintained (evidence submitted) that Wexford Hospital had made no mention of any pregnancy issues in the sick note of the 25th January 2015.
The Complainant was unable to recall exactly when in January she told Ms. B she was pregnant for a second time. However she was quite insistent that it had been in the middle of January and I found her credible on this point. As stated above the Respondent’s written submission refers to the Complainant telling colleagues she was pregnant at the time of the fainting incident.
The Respondent produced extensive written statements from current and former employees giving support to the Respondent’s practice of treating all staff pregnancies in a supportive and fair manner.
4:4 Conclusions.
The question here is
Has a case of Discriminatory Dismissal on Gender and Family Status pregnancy grounds been established?
The Redundancy letter of the 29th January and supported later by the Respondent Solicitor’s correspondence of the 8th April pointed to a laying off of staff due to a drop in patient numbers. The Complainant was not the only staff member made redundant. Referring to the
Assico Assembly Limited v Corcoran (EED 033/2003) case above, the letter of the 29th Januarywas a “written explanation”.
The track record of the Respondent in relation to other pregnancies and supported by the credible evidence from Ms B was not one of an employer with a record of pregnancy related dismissals.
The question of when the Respondent was informed of the second pregnancy was very difficult. The Respondents written submission clearly refers to the 24th as the date that they first became aware of the pregnancy.
On balance, taking all the evidence (which was subject to vigorous cross examination by the Complainant’s Legal Representative) into account I did not find it credible that the Respondents were not, aware, at the time of the Redundancy letter on the 29th January that the Complainant was pregnant for a second time. The contradiction in the Respondent oral evidence and the written submission was not adequately explained.
The colleague of the Complainant that was also let go by the letter of the 29th January actually continued in employment for a number of weeks post her official end date due to a number of unanticipated “respite” cases being admitted to the home. This work was not offered to the Complainant due to, the Respondent maintained, her “illness” post the Wexford hospital incident. In addition the two foreign Nurses acting as Care Assistants were also coming on stream at this time which would have reduced the need for the Complainant.
The evidence of Mrs A in regard to these matters I found somewhat vague particularly in her recollections regarding the decision making and timing of the letter of the 29th January 2015.
Overall I came to the view, on the basis of the evidence, that the Respondent Home had, for sometime, serious work performance issues with the Complainant. The external social issues of January were stated in evidence. The second pregnancy and the likely associated work issues, once it became known, was effectively “the bridge too far” for the Respondents. Options were open to the Respondent to easily replace the Complainant with the foreign Healthcare Assistants /Nurses in waiting. Very strong evidence to refute the inference that the rapid issue of the letter of the 29th January was not prompted by the pregnancy news /confirmation of the 24th January was not available.
Accordingly I had to find that while the pregnancy was not the only factor in the letting go of the Complainant it was a major consideration sufficient to sustain a Pregnancy related Discriminatory Dismissal claim.
The extensive range of legal precedents quoted by the Complainant’s Legal Representative is important here. It is useful also to quote from Bolger, Bruton and Kimber, Irish Employment Equality law - 2012 - Roundhall Press here.
Pregnancy-related dismissal
Section 4-144
“It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of the pregnancy. In effect for an employer to dismiss a woman during her pregnancy, regardless of the reason for that dismissal, they must have duly substantiated reasons for the dismissal given to the employee in writing. Where an employer fails to do that, it is likely that the dismissal will be found to have been unlawful even though no such requirement exists in relation to any other dismissal outside of the pregnancy situation.”
Accordingly in the light of the legal precedents and the evidence in the case in hand I found it impossible to comprehensively rule out that the Dismissal/Redundancy decision was not strongly tainted by the Pregnancy issue. Accordingly the claim of Pregnancy related Discriminatory dismissal stands.
Accordingly it follows that the claims of Discrimination on the Gender and Family status are also allowed.
4:5 Rebuttal Arguments by the Respondent in the Dismissal/Redundancy issue.
The principal arguments were those put in the original letter of the 29th January 2015 and the subsequent detailed letter from the Respondents Legal Representatives on the 8th April 2015. The Dismissal/ Redundancy had been due to genuine business needs following a downturn in patient occupancy numbers. The letter of the 8th April refers to a selection process and selection criteria. However in oral evidence it was clear that these were vague and that a rough “last in first out” applied. There appeared to have been little discussion with the Complainant. The economic arguments were fluid as the other staff member was effectively retained for a period due to the arrival of unscheduled “Respite cases”. This was, apparently, a feature of the business of any Nursing home.
In summary the Rebuttal arguments were not strong enough to adequately lift the implication of a pregnancy related decision.
4:6 Final Conclusions
In final conclusion, having considered all the evidence both oral, written and text messages copied between the parties, I found that , principally based on the Dismissal/Redundancy decision, a prima facie case of discrimination on the grounds claimed, namely Discrimination on the grounds of Family Status and Gender was proven.
The strong inference of a Discriminatory dismissal arising from the 2nd Pregnancy was not refuted by strong enough evidence particularly from Mrs. A the decision maker.
5: DECISION
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.
I have investigated the Complaints as set out in the claim and make the following decisions in accordance with section 79 of the Acts that:
A case to substantiate a claim for Gender Discrimination or Discrimination in regard to Gender or Family Status leading to a Discriminatory Dismissal has been established.
The Discriminatory Dismissal on the Pregnancy Grounds was not adequately refuted.
Accordingly I award the sum of € 3,500 Gross (being approximately 10 weeks gross Pay) as compensation for the Discriminatory Dismissal.
_______________________
Michael McEntee
Equality Officer /Adjudication Officer
28 April 2017