EMPLOYMENT EQUALITY ACTS 1998-2015
Decision DEC – E2017 – 022
PARTIES
Ms Denise Culleton (represented by Hamilton Turner Solicitors)
and
VHI (represented by IBEC)
File Reference: et-151822-ee-14
Date of Issue: 24th March 2017
Keywords: discrimination – time limits – S. 77(5) – victimisation – adverse treatment as a reaction to employee resisting discrimination.
1. Claim
1.1. The case concerns a claim by Ms Denise Culleton that VHI discriminated against her on the grounds of gender and family status contrary to Sections 6(2)(a) and (c) of the Employment Equality Acts 1998 to 2011, in terms of disciplining her for absenteeism when the majority of her sick leave related to a succession of miscarriages.
1.2. The complainant, through her solicitor, referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 3 December 2014. A submission was received from the complainant on 7 March 2016. A submission was received from the respondent on 9 May 2016. On 15 September 2016, in accordance with her powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 2 December 2016.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that she suffered a succession of six miscarriages, which she contends fall under the remit of pregnancy-related illness, in that a pregnancy necessarily needs to precede that tragic outcome of miscarrying. The complainant worked as a team leader for the respondent company. The respondent invoked disciplinary proceedings against the complainant for her absenteeism and, according to the complainant, constantly reminded her that she was a team leader and needed to set an example to her staff. The complainant submits that this was utterly insensitive with regard to her situation.
2.2. The complainant states that the respondent issued her with a “standard letter” for the purpose of establishing a formal disciplinary hearing with her, but that the letter itself did not say so. During the hearing, the complainant was warned that she could be dismissed. The complainant was alarmed when she heard this and sought clarification from the respondent how other staff in a similar situation had been treated. The respondent did not provide this information.
2.3. The complainant was subsequently removed from her position as team leader, because it was alleged that she was not there to lead the team; because she was setting a bad example to her team; she was putting an increased burden on her colleagues; and she was costing the respondent significant money. The complainant states that she was offered alternative positions subsequently which she submits amounted to a downgrade.
2.4. The complainant also states that the respondent told her to “take accountability and responsibility … while realising that her level of absenteeism is not sustainable for the future”. The complainant further submits that she was told her situation was “not unique”. The complainant asserts that a situation like hers happens to “less than 1% of the population”. She does not specify in her submission which population she refers to here.
2.5. The complainant was put on an Attendance Improvement Plan for a three month period, starting from 6 December 2013, during which she was expected to have a 97% attendance rate. The complainant describes this as a “draconian punishment” and states that it severely limited her likelihood of a healthy and stable pregnancy.
2.6. The complainant contends that this is discrimination on the ground of gender, family status and disability.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the complainant had significant illness absences over two years which were unrelated to her miscarriages. According to the respondent, these were 27 out of 228 work days in 2012 and 48 out of 228 work days in 2013. The respondent states that it has a target of 97% attendance for its staff, but that this is not a contractual obligation. It further states that for the first four absences, a staff member in the role of team leader would meet with their operations leader for return to work meetings, and after that, such a staff member would meet with their line manager. In 2013, these return to work meetings highlighted to the complainant the various reasons for her absences, including illnesses unrelated to pregnancy.
3.2. With regard to the meeting on 6 November 2013, the respondent states that the complainant was allowed to bring a friend or a union representative, and that she attended accompanied by her union’s shop steward, Ms B. The respondent denies that it sought to downgrade the complainant from her job. Rather, it submits that part-time work, a career break, unpaid leave and a role change were explored with the complainant in an attempt to support her in establishing a positive attendance pattern. It states that the complainant was given time to think over these options and to indicate whether she would have wanted to avail of them.
3.3. When the complainant indicated that she did not wish to avail of any of these options, she was placed into a disciplinary procedure, at the stage of a verbal warning. The respondent states that this procedure was never escalated.
3.4. The respondent states that the complainant lodged a grievance on 17 January 2014, which was investigated by an independent investigator together with the respondent’s general manager. The grievance, and subsequently the complainant’s appeal, was not upheld. The respondent states that the Attendance Improvement Plan arose from efforts to resolve the grievance, and that the complainant was taken out of the disciplinary procedure.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. At the beginning of the hearing, issues of time limits arose, since most the complainant’s pregnancy-related sick absences happened until 2012, whereas the complaint was filed on 3 December 2014. In 2013, the complainant suffered an ectopic pregnancy which necessitated two surgeries, the second of which took place in June 2013. The complainant stated in her evidence that in January 2014, her consultant advised her to stop trying to have a baby. The complainant also suffers from chronic fatigue syndrome (CFS) and gave evidence of how her miscarriages and her surgeries compromised her immune system, which in turn brought on the symptoms of CFS. However, the complainant did not bring a complaint of discrimination on the ground of disability. In the complainant’s evidence, 4 June 2014 was the day on which she received the findings of the grievance she had raised, which was not upheld.
4.5. The complainant raised her grievance following disciplinary procedures which the respondent put in place in response to her levels of absenteeism, which included her pregnancy-related absences. In this regard, it can be comprehended as part of the complainant’s victimisation complaint, in that it can be seen as, potentially, resisting discrimination. It must be borne in mind here that the validity of the complaint falls to be examined separately. I am satisfied that this victimisation complaint was lodged within the time limits set out in S. 77(5) of the Acts.
4.6. In terms of the complainant’s complaint of discrimination, however, I find that the events connected to it – be it either the complainant’s sick absences or the disciplinary meeting in October 2013, or the written notification of the outcome of that meeting dated 26 November 2013 and received by the complainant on the same day – occurred more than a year before the complaint was lodged with the then Equality Tribunal.
4.7. Had the complainant’s complaint been lodged as soon as possible after she was notified of this outcome, an extension of time could have been granted for the very reason that the complainant was engaged with the grievance procedure. As things stand, the further delay which then occurred in filing the complaint put the matter of the complainant’s potential discrimination entirely outside my statutory powers, given that I cannot extend time beyond 12 months.
4.8. I must therefore find that the complaint was brought outside the time limits set down in the Acts and that I have therefore no jurisdiction to investigate the matter.
4.9. To look at the complainant’s complaint of victimisation, it is necessary to consider again the disciplinary process which was initiated by the respondent in October 2013, even though I have no jurisdiction to make a finding in respect of it.
4.10. The complainant stated in oral evidence that when she was placed on an attendance improvement plan as stage 1 of the respondent’s disciplinary procedure, this meant that the respondent was telling her “not to have a baby, not to have a family”. It may have been the complainant’s emotions related to her painful past experiences which influenced this statement. From the evidence of the respondent witnesses, I am satisfied that the respondent was primarily concerned with her level of absence and its impact on the respondent’s operations. I am also satisfied that the sick absences of the complainant which triggered this process were due to her other health problems, yet in the absence of a complaint on the ground of disability, I cannot have further regard to this fact.
4.11. On the other hand, I am satisfied that whilst the complainant’s pregnancy-related absences were not considered for the disciplinary process, this was not communicated with the necessary clarity and emphasis to the complainant in the meetings she attended, and that this omission caused her a great deal of unnecessary stress and anguish. I accept the complainant’s evidence that she was greatly afraid of losing her job and that she found it very difficult to attend work every day under the circumstances. There can be no doubt that the respondent handled this matter very poorly.
4.12. The question as to whether the respondent victimised the complainant, however, is another matter entirely. Section 74(2) of the Acts defines victimisation as
For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs. [Emphasis added]
4.13. It was the complainant’s contention in her oral evidence that going “from back to work interviews to full-blown disciplinary procedures” was her victimisation. However, this notion lacks the preceding complaint or act of resistance on the part of the complainant which is needed to ground a valid victimisation complaint. I am therefore taking the complainant’s invocation of the respondent’s grievance procedure as that act of resistance to potentially discriminatory conduct, and now look at the respondent’s response.
4.14. In that respect, I note from the complainant’s own evidence that not only was she never demoted, but also that the attendance improvement plan which had been drawn up for her was never implemented. In fact, any potentially adverse treatment of the complainant stopped after she had raised her grievance. The complainant also remains in the employment of the respondent. In other words, following the complainant’s grievance, none of the scenarios she feared when the disciplinary process was first instituted came to pass. Whilst I again appreciate the stress it must have caused the complainant to have to resort to this, the overall response from the respondent does not meet the definition of “adverse treatment” as envisaged by the Acts. In fact it looks rather like the opposite. In the light of this, the complainant’s complaint of victimisation cannot succeed.
5. Decision
5.1. This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
5.2. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Employment Equality Acts 1998-2015 that pursuant to the time limits set down in S. 77(5) of the Acts I have no jurisdiction to investigate the complainant’s complaint of discrimination on the ground of gender and family status. I further find that the respondent did not victimise the complainant within the meaning of S. 74(2) of the Acts.
5.3. In the light of the procedural deficiencies which have emerged in evidence however, I recommend to the respondent to issue a clear reminder to all managers handling absence management tasks, that pregnancy-related illnesses are exempt from the absence management policy and that this is clearly communicated to all affected staff.
______________________
Stephen Bonnlander
Equality Officer
24 March 2017