DEC-E2017-011

EMPLOYMENT EQUALITY ACTS

DECISION NO: DEC-E2017-011

PARTIES

COMPLAINANT Fiona Byrne

Represented by Geraldine Grady, Step HR Services

v

RESPONDENT HSE

Represented by Maria Dillon of JD Scanlon & Co Solicitors

File reference: et-153255-ee-15

Date of issue: 8 February 2017

Background

The Claimant is employed as a Staff Nurse since January 1995. She has claimed that she has been discriminated on grounds of disability, gender, marital status and family status.

The complaint was referred under the Acts to the Director of the Equality Tribunal on 2nd February 2015. In accordance with powers under Sec 75 of the Act, the Director delegated the case to me Eugene Hanly, an Equality Officer, for investigation and decision. Submissions were received from both parties. As required by Sec 79(1) of the Acts a hearing was held on 10th November 2015.

In reaching a decision I have taken into account the written and oral submissions of both parties.

The complaints of gender and disability discrimination were withdrawn.

Summary of Claimant’s position

The Complainant made a complaint to management about racketeering at work where she had to pay other employees for the opportunity to get their shifts of night duty. She needed to work night duty because of her family status being a single parent of dependent children. She stated that this corrupt practice of having to pay for these shifts was both facilitated and condoned by management. She met with the Assistant Director of Nursing and the Sector Manager on 8th February 2011 and showed them the note from a colleague confirming the payment required. No investigation was carried out by management. They undertook to stop this practice. On 4th April 2012 a letter was sent to all employees to cease this practice. It stated “Transferring night duty for payment. It is alleged that this practice pertains in X place. This alleged practice, if in place, is not condoned by management and must cease with immediate effect”. She sought a job sharing arrangement but this was declined. It was declined on the same date that the letter of cessation of this alleged practice was sent. She believes that she was refused this job share because she reported a corrupt practice. She then sought a 19 hour week in order to facilitate a Family Income Supplement payment. She had been working 18.75 hours at that time. All she needed was an additional 0.25 hours per week. This was refused. She believes that this refusal was because she had reported a corrupt practice and because she was a divorcee and single parent. The excuse given by the Respondent was that it was due to financial constraints. In January and February 2012 she was the only person who had to get approval of the CNM to work overtime. There were four job sharers at this location. The Complainant was the only person who had to get permission to work overtime. She believes that this was because she had reported a corrupt practice and because she was a divorcee and single parent. The CNM commented that she was “here little enough”. Again this was a reference to her family status. The roster that was operated by her line manager was done in a manner that disadvantaged her financially and benefitted her colleagues. She believed that this was done in retaliation to her having reported a corrupt practice and because she was a lone parent. Shifts were given to colleagues as overtime yet she was denied this. The new Allocations Manager granted shifts without reference to then CNM for permission. Again she was discriminated against because of her family status. On 3rd March 2012 she was refused overnight overtime. She believes that she was victimised for making this complaint of corrupt practice. She made a complaint and it was never investigated. This is ongoing. Agency nurses were brought in ahead of her. Others were allowed to change rosters. She was adversely affected by this because she raised a grievance. Her health has been seriously affected by this. She was called by HR to a “managing attendance” meeting but there was no disciplinary action taken. It is not normal practice to have to go to HR, its usually Line Management. Again this was a form of victimisation. It was done to humiliate her. All she was looking for was to be treated the same as the rest of her colleagues.

She is seeking to be treated the same as her colleagues. She is seeking an acknowledgement of the victimisation that she suffered. She has felt alone and unsupported. Management should have done more to help her. She is seeking compensation for the trauma that she suffered and the negative impact that it has had on her health and on her family. She is out sick since August 2014 and has not been paid since 2nd January 2015. She is still unfit for work. She is seeking compensation.

Summary of Employer’s position

The Respondent referred to the Statutory Instrument 367/2013 which sets out the statutory provisions of the caring industry.

Comparator

They stated that no comparator was named by the Complainant and therefore the complaint is invalid and should not be considered.

Time limit

There could be no possible discrimination since the static roster was introduced to X Centre on 7th October 2012. There were no formal complaints made during the period 7th October 2012 to 8th August 2014 when she went out sick, despite the allegation that the Complainant maintains that she continued to make complaints about the rosters up to 8th August 2014. This complaint is out of time and should be rejected.

Complaint of corrupt practice

The Complainant reported an alleged corrupt practice in July 2010 concerning the possible payments for the opportunity to work shifts. The line manager brought this to management’s attention. The Complainant requested that no names were to be mentioned. This meant that the Respondent was unable to formally investigate the matter. They returned the document to the Complainant as they were unable to use them. However management issued a written statement about this alleged practice and issued an instruction to cease. This is all that could possibly be done as no names were formally given to them. She made no further complaints about this alleged practice.

The
Respondent strongly rejects the allegation that they penalised her for making the allegation.

Job Sharing

This request was initially refused due to business needs but was granted on 1st August 2011. This is rejected and any allegation now is out of time.

Seeking 19 hours per week

She was at that time working 18.75 hours per week on a job share arrangement. She requested 19 hours per week to facilitate the payment of a Family Income Supplement from the Department of Social Welfare. 18.75 hours per week is half a full time person’s hours. There is a collective agreement that provides for half time only. Management and the collective health sector could not agree to any deviation from this half time as it was not provided for in the agreement. Any change from that would breach that agreement would have serious knock on affects to the collective agreement.

This occurred in November 2011 and so any possible allegation of a contravention of this Act is out of time.

Rosters

The reason why certain staff were utilised was the HIQA requirement for staff to know their patients. The management cannot change the rosters because of HIQA standards and not because of her civil or family status.

Attendance meeting

She was called to a review of attendance meting resulting from her 5 days of absence. This was routine only. No disciplinary action took place.

Any time that she had childminding needs she was facilitated whenever possible. The management did have problems in contacting her. There is no evidence that employees were refused to be facilitated.

It is the Respondent’s position that she has failed to name a comparator which is a requirement under this legislation. She has not made a claim that she has been discriminated against. She is not in a unique position concerning her civil or family status. She is not the only divorcee and single parent in the employment. She is in receipt of Temporary Rehabilitation Remuneration. There is plenty of work available but she is unable to attend work. An examination of records between 30th July 2012 to 3rd August 2013 shows that she had equal access to premium work in comparison to her colleagues.

This complaint is rejected.

Findings / Conclusions of the Equality Officer

This is a complaint of discrimination on the grounds of civil and / or family status.

Sec 6(a) defines discrimination as “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) of this Act”.

Sec 6(2) of the Act provides that the complainant has to establish that she was treated less favourably on grounds of civil and/or family status.

In this complaint the Complainant alleges that she was treated less favourable because she was a divorcee and was a single parent.

A) Time limit

Sec 77 (5) (a) of this Act states, “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates, or as the case may be, the date of its most recent occurrence”

Therefore for a claim to be in time a complainant needs to show that the last act of discrimination occurred within 6 months of lodging her complaint and for the other alleged acts of discrimination to be within time there must be sufficient linkage between the last act and the other acts.

This complaint was presented to the Equality Tribunal on 2nd February 2015. Therefore the period that may be investigated is 3rd August 2014 to 8th August when she went out sick and has not worked since.

The Complainant stated that she reported corrupt acts in July 2010 whereby she had to pay for the option of working night shifts. Because of her family status she needed to work night shifts as it was easier for her to get child minding facilities.

I note that she has alleged that she was penalized for making that report of corrupt action and was denied access to night shifts, job sharing and being facilitated with a 19 hour week. She has also alleged that this practice continued until she went out sick on 8th August 2014 and she has not returned to work since. She has alleged that she continued to make complaints about discrimination on grounds of her family and civil status up to the day she went out sick.

She stated that the discriminatory acts were as follows:

1) Request for job sharing

She requested this but it was declined because she had reported a corrupt act and because she was a divorcee and single parent.

I note that the Respondent stated that they considered her request but were unable to grant it straight away. However it was granted on 1st August 2011.

I find therefore that any possible allegation of discrimination ended on 1st August 2011 and so that part of the complaint is out of time as per Sec 77 (5) (a).

2) Seeking 19 hours per week

She alleged that she was refused a 19-hour week in November 2011 because she had reported a corrupt act and because she was a divorcee and a single parent. She was working 18.75 hours since she had been granted a job share. She needed to work 19 hours, an increase of 0.25 hours per week in order to qualify for Family Income Supplement (FIS).

The Respondent stated that the hours of work are governed by collective agreements. Staff on job share arrangements work 18.75 hours which is 50 % of a full time post. They do not have an agreement with the unions and their staff to alter this arrangement. Any individual case altered would have a huge impact on this collective agreement. So the reason had nothing to do with her civil or family status but on the provisions of a collective agreement. This was November 2011.

I accept the Respondent’s arguments as being compelling and believable.

I find that they had objectively justifiable reasons for not granting the 19 hours of work.

I find that these reasons had nothing to do with her civil and family status.

I also note that this matter referred to had arisen in November 2011.

Therefore I also find that this matter is out of time as per Sec 77 (5) (a)

3) Rosters

I note that the Complainant stated that she was refused rosters because she had reported a corrupt act and because she was a divorcee and single parent.

I also note that she alleged that she was the only person who had to have the CNM’s approval for the night shift working.

I note that the Respondent stated that the reason why certain staff were utilised was because of the HIQA requirement for staff to know their patients. The management cannot change the rosters because of HIQA standards and it was not because of her civil or family status.

I also note that the Respondent stated that static rosters were introduced on 7th October 2012.

Therefore that was the last possible time that she could have alleged discrimination.

Therefore I find that that incident was out of time as per Sec 77 (5) a) of this Act.

4) Attendance review meeting on 26th October 2012.

She alleged that she was called to a review of attendance meting resulting from her 5 days of absence. She alleged that this was in retaliation to her making a report of corrupt acts and because she was a divorcee and a single parent.

I note that the Respondent stated that this was routine only. No disciplinary action took place.

I find that this was a once off incident and as no disciplinary action ensued, it could not be construed that there was discrimination.

This matter occurred on 26th October 2012 therefore any possible allegation of discrimination then was out of time as per Sec 77 (5) a) of this Act.

For the above stated reasons I find that this complaint is out of time as per Sec 77 (5) a).

B) Comparators

I note that the Complainant had not nominated any comparators or notional comparators as is required by this Act.

I note that at the hearing the Complainant named two colleagues who she believed would be able to support her complaint regarding the issuing of rosters that she was treated less favourably because of her civil and family status.

Comparator 1 stated that she had no issues with rosters. Whenever she was asked to work them she was able to oblige.

I find that this was not the issue under investigation. When asked if she requested certain rosters herself she advised that she never requested rosters.

I find that that Comparator had no evidence worth considering.

Comparator 2 stated that she could not remember ever requesting rosters.

.

I find that that Comparator had no evidence worth considering.

I find that the Complainant had no comparator to support her complaint.

Prima Facie Case

Sec 85A of this Act sets out the burden of proof which applies to claims of discrimination. It provides in effect that where facts are established by or on behalf of a complainant from which discrimination may be inferred it shall be for the respondent to prove the absence of discrimination.

I find that there was a lot of confusion on the Complainant’s part when presenting their case. I found that they constantly referred to victimisation resulting from making a report of corrupt activity, which was the subject of a complaint under the Prevention of Corruption (Amendment) Act 2010.

I find that when asked by the Adjudication Officer what had it to do with equality they then referred to victimisation / discrimination of grounds of civil status and family status but they were unable to support the complaint sufficiently so as to establish a prima facie case.

I have found no evidence that the Complainant was discriminated against on grounds of civil status and / or family status.

I find that the Complainant has not established a prima facie case of discrimination.

I have also found that this complaint was out of time.

Therefore I find that the complaint must fail.

Decision of the Equality Officer

I hereby make the following decision in accordance with Sec 79(6) of the Employment Equality Acts.

For the above stated reasons I have decided that this complaint fails.

Eugene Hanly

Equality Officer