ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004169
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00005894-001 | 17/07/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00005894-002 | 17/07/2016 |
Venue: Lansdowne House, Dublin 4.
Date of Adjudication Hearing: 07/03/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 79 of the Employment Equality Act, 1998 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background
The Complainant was employed as a Support Nurse Specialist from 1st October 2002 to 3rd May 2016. She was paid €5,420 gross per month. She has claimed that she was discriminated against on grounds of her family status. She has sought compensation.
I) Employment Equality Act CA 5894 – 001
Complainant’s Submission and Presentation:
The Complainant commenced employment in or about the month of October, 2002 having been the subject of a transfer of undertaking during the currency of her employment. Her employment was terminated on grounds of alleged redundancy on the 3rd May, 2016. On the 22nd of February, 2016 the Nurse Manager requested the Complainant to attend a meeting with HR in the afternoon with and advised that the Project Director would be on Skype. . At this meeting the Complainant was brought through a series of slides Update February 2016. It was explained that the company wanted to align the Irish and UK support line service which would result in the Complainant working pattern of Monday – Friday 9am to 5 pm change significantly. The fact that this represented a ‘significant change’ is recognised. The new work pattern would span over 6 week cycle and incorporate evening as well as weekend work over 40 hours per week. The Complainant was told that the evenings and weekends would have to be done from home as they would not be able to ensure her safety in the office out of normal business hours. The new rota was to commence from the April 1st 2016. The Complainant was then advised of the timescale as follows:
22/02/2016 was the start of a 30 day Consultation period where there would be weekly calls. They would look at redeployment if she felt the new rota did not suit. On 2nd March, 2016 was end of the 30 day Consultation Process and if there had been no resolution then she would be notified of her notice terminating her employment. She was told that they would meet again on the 23rd March 2016 to issue her with Formal notice of Redundancy. Redeployment: She was advised to explore any new opportunities. Emails and number were provided. Also advised to check out the company websites. They also offered to look at the Applicant’s CV. Over the next week she spoke at length with her husband, her Child minder and her family to see was there any way she could try to work the new rota. She made contact with child minders and made enquiries through mother and toddler groups to see if they knew anyone that would be interested in working the out of hours and weekends for her. She contacted the crèches to see if any opened after 6pm. On the 1st March, 2016 there was a further meeting and she explained that due to her family circumstances she was unable to change to the proposed work pattern. She also informed the meeting that she was due her third child in July 2016. She advised the meeting that her husband is working in a job that requires him to work away from home evenings and weekends. She explained that currently she has a child minder 3 days a week and they attend crèche two days a week. She advised that her child minder was not available to work after 6p.m. or at weekends. She advised as to her enquiries with local crèches. She advised that she had made enquiries to see if there is any child minder that would work out of office hours but to date had no response. She advised the meeting that anyone she contacted was not interested in working late evenings and at weekends. She explained to the meeting that neither she nor her husband had family living near that could help them out with childcare as they are not from Dublin. She also explained that working from home with a young family was going to be very difficult and she had done a trial run which was totally unsuccessful. The Complainant in the hope that she could still find some form of suitable childcare arrangement asked was there any possibility that out of hours/ weekends could be done in the office but this was refused.
The Complainant was asked what she could do? She suggested that she continue on her usual work hours and that she would help the UK support line out in whatever way she could. She advised that she could continue to take all the Irish calls so all UK staff would not need to be re trained. She advised as long as she could attend to her parental obligations she would work anywhere. She was asked if she had she looked at redeployment. She told the meeting that unfortunately the recruitment manager was on annual leave at present but she had made contact with the Nurse Manager who advised that she did not have anything presently. She was aware that there was a large backlog in UK calls and maybe with the Applicant continuing to work her current hours she could help out with this. The meeting was finalised on the basis that the company would make further enquiries as to whether this proposal could be accommodated. There was a further meeting on the 8th March, 2016. They apologised that she had no update on the proposal from the last meeting. She was asked if anything had changed on her side and she advised that unfortunately she had not found a child minder who will facilitate their proposed amended hours of work. She advised the meeting that getting a good child minder usually takes longer than four weeks in any event.
There was a further ’phone meeting on the 16th March, 2016. She was advised that the proposal for her to continue to work her current hours and support the UK in dealing with their backlog was not acceptable and they wanted the Irish and UK operations aligned. She was asked if she had found anything internally to which she replied no. She was advised there was nothing suitable at present but she would let her know if something came in. She was advised that she would still receive her maternity benefit pay from social welfare as long as she was employed on or past April 4th. The next meeting was scheduled for the 23rd March, 2016 to place her on notice and it was explained to her that she had a 6 week notice period. She became very upset at this point and was unable to contribute any further to the meeting. There was a further meeting on the 23rd March to take her out of consultation as the 30 day process had come to an end. She was due to be placed on six week notice but was advised that this was not going to happen as they needed her to continue to do the job until they found someone else. They also needed her to train the new person into the position. This was not optional and receipt of her statutory redundancy entitlement was dependant on her compliance. She was advised that she was going to work until 3rd May, 2016 and then her formal notice period would commence. This means that she got an extra six week’s pay. She replied that it still means that she does not have employment. She discussed the matter subsequently and expressed how difficult she was finding this and remonstrated how she wanted to keep her job which she was passionate about. She continued to work but her health deteriorated and she attended her doctor on the 1st April, 2016 and was certified on two weeks sick leave. On review on the 15th April, 2016 certification was extended until the 3rd May, 2016. On the 3rd May, 2016 she was given her redundancy notice letter. She enquired about her health insurance and pension and was advised that they will be notified by the company and both would be in contact with her in the coming weeks. She expressed her disappointment that after 14 years of dedicated work to the service that this was the way she was being treated.
It is submitted that the Complainant’s family status forced her redundancy situation. The Respondent did not dispute that she could not adhere to the proposed amended hours of work due to her family status at the time of her dismissal on the grounds of redundancy. Her position of employment was not in fact redundant and she was asked to stay on to train in her replacement and her position of employment was advertised.
The Respondent failed to have regard to the relevance of her family status and the effect of a change of hours would have and obliged a dismissal on the alleged ground of redundancy. It was made absolutely clear by her to the Respondent on a number of occasions that she could not adhere to the new proposed hours of work on the grounds of her family status and further that she did not wish to leave her position of employment and requested that regard be given to her years of service. It is clear that whilst the Respondent referred to a consultation period that this was not a consultation but rather her being told to work the new rota or she would receive her notice and be made redundant, whilst acknowledging her position of employment was not in fact redundant. This was not a consultation this was an ultimatum. It is clear from the documentation that termination of her employment was on the table from the very first meeting. This is because her employer knew that she could not meet the new proposed rota due to her family obligations. She received no prior notification before attending the first meeting that her position of employment was under threat. She was not invited to bring a union representative, work colleague or anyone to this meeting or any subsequent meeting to represent her interests. In respect of redeployment this was clearly nothing more than lip service evidenced by the suggestion that she have a look at job opportunities advertised on the Respondents website. Any question of possible redeployment was left entirely to her and it is clear that the Respondent at no stage itself sought to identify or propose redeployment options to her. That the Respondent made no attempt to take steps and/or failed to even consider steps to make reasonable accommodation as a consequence of her family status which they were on notice of. When strictly brought to the Respondents attention the Respondent dismissed the Applicants family circumstances and at no stage did the Respondent seek to address any possibility of accommodating her in respect of her family status by seeking to identify possibilities for job-sharing or part time work. The Respondent did not explore the possibility of allowing her to continue with her existing work hours and adapting the rota in respect of another employee or (ii) exploring whether another member of staff would be in a position to adapt the hours within the proposed rota which conflict with her family obligations and interchange her with them for the offending proposed hours of work. The Respondent failed to have regard to the relevance of her family status and the effect of a change of hours would have, or had regard to same and obliged a dismissal on the alleged ground of redundancy. The Respondents failure to appreciate or ignore, her family status had the known consequence of terminating her employment. The Respondent by obliging family unfriendly hours discriminated against her on the ground of her family status. There was no consideration by the Respondent of her request to maintain her pre-dismissal hours on the ground of her family status. The ‘consultation’ commenced with an ultimatum to change to the new family unfriendly work pattern or be issued with a formal notice of redundancy. It is of considerable concern that at the very first meeting where the change to work pattern was advised redundancy was also put on the agenda and it is indicative that the Respondent knew from the outset that she due to her family status would not be in a position to comply with the significant change to her hours. It is her belief that she was replaced in her job by persons who were not disbarred from doing family unfriendly hours on the grounds of their family status. The Respondent, on notice that she did not wish to leave her position of employment, obliged her redundancy due to the discriminatory change in roster and proceeded to implement the changes to oblige her redundancy.
Case Law She will intend to rely upon a number of decisions in support of her application to include but not limited to the following decisions:
Byrne – v- Reynolds DEC-E2007-22, 26 April, 2007 The decision in this case was that the failure of Employer to reasonably consider a request by a female employee to work part time/ flexible hours due to family commitments amounted to a form of indirect discrimination. The conduct of the Respondent herein went even further in failing to consider the request of the Applicant to maintain her present hours due to her family commitments.
Black – v – Tesco Ireland DEC-E2002-03, 30 January, 2002 The decision in this case provided that an employer must at least consider a request on basis of family status and failure to reasonable consider request was indirect discrimination. The Respondent herein failed to even entertain the Applicants request that her hours remain unchanged or not be altered in a way so as to not place her in a position where she could not continue in employment as a consequence of her family status.
O’Donnell and Others –v –Health Service Executive (North West Area) DEC-E2006-023 The decision in this case found that rosters for work discriminated against mothers with family responsibilities as they weighed more heavily on them and thereby amounted to indirect discrimination on the grounds of family status. It is respectfully submitted that the change in rosters in the present circumstances amounted to indirect discrimination against the Applicant.
Kelly - v – Higgins DEC-E2007-002 In this decision the Applicant, who refused to work a changed roster, was dismissed. The finding was one of indirect discrimination on grounds that change in roster impacted more heavily on a person who was a primary carer. The decision proceeded to state that the legitimate aim of running an efficient business could have been achieved by other methods. In the present application the Applicant is the primary carer of her children and further it is the Applicant’s contention that there was no consideration to achieve any aim which the Respondent desired by other means, or facilitating her within the department on family friendly hours or consideration to transferring the Applicant to an alternative role if necessary.
O’’Brien –v- Persian Properties (trading as O’Callaghan Hotels) May, 2012 In this case the Respondent also terminated an employee’s employment whilst pregnant. The Equality Officer stated: ‘It is only in the most exceptional of circumstances, which are not connected to the condition of pregnancy, that allow a woman to be dismissed during pregnancy.’ During the ‘consultation’ process the Applicant advised the Respondent she was pregnant but notwithstanding same they proceeded with her dismissal in entirely unexceptional circumstances.
Inoue v NBK Designs [2003] E.L.R. 98 The employee, who was a single parent, was a part-time secretary/personal assistant who had a job sharing position with another employee due to her family responsibilities. The employer decided to merge the two posts, creating a full-time position. The employee was asked to take on this role but was unable to do so having regard to her family responsibilities. As a result, she was dismissed. The Court rejected the objective justification advanced by the employer to the effect that there would be an improvement in the efficiency of the administrative work performed by the two job-sharers in the work being performed by one of them. The Court did not accept that it was essential for the shared post to be a full-time post occupied by one individual. The fact that the Labour Court went as far as considering whether or not it was “essential” for the post to be a full-time post demonstrates the high onus on an employer to objectively justify the requirement for a post to be a full-time one only.
Conclusion Her submission is that the unilateral change of her work roster to family unfriendly hours discriminated against her on the ground of her family status. Further, the Respondent on notice of her inability to comply with the new roster furnished her with an ultimatum to leave and take statutory redundancy. The Respondent proceeded to oblige her redundancy where in fact no such redundancy existed notwithstanding that it was on notice of the fact that she was pregnant. She is seeking compensation for the act of discrimination which has occurred. Further, it is submitted that it would be open to an Equality Officer to make an Order of compensation for discriminatory dismissal.
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Respondent’s Submission and Presentation:
The respondent is a multi-national biopharmaceutical outsourcing company. Among other activities, the respondent provides clinical, information technology and customer services support in respect of biopharmaceutical products manufactured by the third-party companies that are the respondent’s clients.
The respondent’s clients include the manufacturers of pharmaceutical products. Such clients contract with the respondent for the respondent to provide (among other services) nurse support to patients who use pharmaceutical products produced by those manufacturers. The respondent operates in a competitive environment in which client contracts are periodically won and lost. The respondent is obliged to be responsive to the commercial needs of its clients in order that the respondent may retain the business of its clients. One of the respondent’s clients is a pharmaceutical company. In 2010, the respondent won a contract from one of the respondent’s competitors. The contract was to provide support for patients who use (and clinicians who prescribe) two products, a treatment for multiple sclerosis and a treatment for growth hormone deficiency. The respondent’s associated company in the UK has the equivalent UK contract for the same products.
The complainant is a qualified nurse. She had worked for several different companies providing support for these products since 2002. When the respondent won the contract in 2010, the complainant’s employment transferred to the respondent further to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The complainant was working as a field based nurse at the date of the transfer in 2010. The role of a field based nurse involved travelling considerable distances to visit patients and health-care practitioners to instruct such people about the correct use of the products in question. For most of the period from 2010 to 2013, the complainant's area of operations spanned from Dublin to Donegal and all the area in between, including Northern Ireland. For some periods during that time she covered the entire of the island of Ireland. Her role was not a nine-to-five job. It involved significant periods of travel and out-of-hours visits to patients. In early 2013, the complainant moved, by agreement, from her role as a field based nurse to a new position, entitled MySupport Nurse Specialist, providing telephone support to patients and healthcare professionals in relation to the two relevant products. She was the only person on the respondent’s Irish team with this telephone support role. She worked from the respondent’s office in Dublin. The respondent’s management did not provide a formal rota setting out her hours of work, but the complainant worked during normal business hours on weekdays, typically finishing between 17.00 and 18.00 pm each day depending on work requirements. The complainant worked MySupport Nurse Specialist continuously from early 2013 until the termination of her employment in 2016, except for two periods (the first in 2013-2014 and the second in 2015) when she was on maternity leave.
The operations of the Irish and the UK subsidiaries have been reasonably closely aligned in recent years. One of the aspects of the ongoing alignment between the Irish and the UK operations was that telephone calls originating in Ireland made to the support line for the two relevant products that were made received outside office hours (ie during evenings and weekends) were diverted to the complainant’s counterparts in the UK. This change occurred in or about 2013.
The level of alignment between the UK and Irish operations was increased in early 2016, when a global corporate restructuring led to certain aspects of the group’s activities in the UK and Ireland being brought together as a single cluster for certain operational purposes. The then extant UK and Ireland contract for the products was due to expire at the beginning of 2016. During the second half of 2015, the Respondent had intensive discussions with its main client with a view to the renewal of the contract. The client made it clear that it needed to achieve efficiencies in the contract because one of the two relevant products was coming to the end of its life and was not as profitable as it used to be. In consultation with each other they devised a number of proposals by which the Respondent could provide the required level of support in a more efficient manner. These efficiencies included the following measures:
(a) the reduction in the total number of UK-based employees working on this contract from 15 to 12;
(b) the redeployment of several UK-based roles from field based nurse roles to telephone-based roles, so as to decrease the total number of field based nurse from 12 to 7 nurses and to increase the total number of telephone support staff (nurses plus device technicians) from 3 to 5; and
(c) the integration of Irish and UK-based telephone support functions.
In order to achieve the integration of the Irish and UK-based telephone support service, they both agreed that the person operating the Irish-based telephone support service would join a team rota that allowed a fair distribution of evening and weekend work between the one Irish role and the five UK-based roles. This meant devising a six-week rota. For the complainant (or any other person carrying out the complainant’s role) this meant that the rota would change from one in which all working weeks were the same (Monday-Friday during normal office hours) to one in which there would be a six week cycle, as follows.
(d) There would be four weeks during which the complainant would work during similar hours as she had before. These four weeks would run from Monday to Friday and would be either 9.00 to 17.30 (for two weeks of every six) or 9.30 to 18.00 (for another two weeks of every six).
(e) There would be one week during which the complainant would work Monday and Tuesday during normal business hours; would not work on Wednesday or Thursday; would work a later shift on Friday (12.30 to 21.00) and work during the weekend (9.00 to 17.30 Saturday and Sunday).
(f) There would be one week during which the complainant would work later shifts (12.30 to 21.00) from Monday to Thursday and a normal shift (9.00 to 17.30) on Friday.
The net effect of these changes is that, in each six week period, the complainant would work five evenings from 12.30 until 21.00, one Saturday from 9.00 until 17.30 and one Sunday from 9.00 until 17.30. The respondent engaged in a detailed consultation with the complainant about the rota changes. The complainant was reluctant to change her shift pattern. The parties had five formal engagements (one meeting and four conference calls) in respect of the issue and the complainant also discussed aspects of the matter with members of the respondent’s staff during the consultation period. The respondent’s management proposed being as flexible as it could be in respect of the complainant’s new rota. It was the management’s expectation that the complainant would work from home during any weekend or evening work, because it would be preferable that the complainant would not work in the respondent's premises during times when she would (if present) have been alone in the premises. After consideration, the complainant made clear that she would not accept any shift pattern other than Monday to Friday during normal office hours. The respondent attempted to assist the complainant to find other appropriate roles within the organisation but none could be found. At the end of the process, the respondent reluctantly decided to make the complainant’s role (namely a telephone support nurse working during normal business hours) redundant and to replace it with the shift-based role required by the respondent’s client. This meant that the complainant’s employment ended by reason of redundancy. The respondent was most disappointed at that outcome, since the complainant was an excellent employee and was highly valued both by the respondent and the client.
The client renewed its contract with for a further two years, 2016 and 2017. The renewed contract was concluded in March 2016. The respondent at all times acted lawfully and reasonably in respect of the complainant, including in respect of the termination of the complainant’s employment.
The consultation process started on 22 February 2016. The complainant was invited to attend a briefing at which the reasons for the proposed changes were explained in detail. The attendees were the complainant, HR, the complainant’s manager and by conference call from the UK Project Director. The meeting of 22 February 2016 was clearly expressed to be the start of a 30-day consultation process. The proposed new rota was put to the complainant. The proposed new rota was based on a 40-hour week because the respondent’s management believed that the complainant was working a 40-hour week. The respondent’s management outlined the possible options to the complainant. They made it clear that their preference and the client was that the complainant would accept the proposed new rota. If she did not wish to accept the new rota she was encouraged to explore redeployment opportunities that would keep her in the respondent’s employment. If she would neither accept the new rota nor accept redeployment, then it was envisaged that she would be made redundant. At the meeting of 22 February 2016 the respondent’s management expressed the preference that the complainant would work from home during any weekend or evening work. The respondent’s management would have preferred that the complainant would not work in the respondent's premises during those times because of concerns for the complainant’s safety and security if she was working alone in the building. At this meeting, and throughout the consultation process, the respondent’s management made it clear to the complainant that she could bring any suggestions she wished to bring to the management, and that any suggestion she brought would be fairly considered. The complainant made it clear that she would not consider any role that required her to return to working as a field based nurse, the role that she had held for 11 years from 2002 to 2013. The complainant questioned why the proposed new rota was a 40-hour rota and said that her current working week was a 37.5 hour week.
During the consultation process, the complainant investigated the possibility of working from home. She brought a computer monitor home, retained a childminder in her home and did some work from home. The complainant reported that working from home was unsatisfactory for her because she was being interrupted by her young children. The consultation process continued with a conference call between the complainant Project Support Associates on 1 March 2016. Having carefully considered the situation and explored various child-care options, the complainant explained that she could not work the proposed new rota for a variety of reasons that she set out in detail.
The complainant is recorded in the minutes of the call as saying that “all things considered, the proposed shift pattern won’t work and the only option YM has is to continue working 9-5 Mon-Fri.”
A number of alternative options were discussed at this meeting. The company indicated that the respondent would consider a possible alternative option whereby for the complainant would continue working her current hours and would address a backlog of UK-based phone calls.
Internal redeployment options were explored within the respondent’s organisation. It was suggested that the complainant examine the intranet for opportunities that were of interest to her, as well as speaking with the respondent's recruitment function.
The complainant informed the respondent’s management during this call that she was pregnant.
The consultation process continued with a third interaction, a conference call on 8 March 2016. The complainant again said that she could not work the new rota because of child-care reasons.
They were working with the client to see what other options were available. The complainant queried why it was so critical for her to join the new shift pattern. The management representatives confirmed that the client was joining the UK and the Irish services “and as such want the two groups to fully merge.”
The complainant asserted that some Irish patients would prefer only to speak to someone from Ireland, whereas under the merged system Irish patients would be referred to nurses working on the UK team. The management side explained that one of the UK-based team was Irish and that calls originating in Ireland would be directed first to the complainant, and only if neither was available would such calls be directed to a non-Irish nurse. There was further discussion of the possibility of redeployment of the complainant to a different role. After that meeting, the respondent provided the complainant with a revised new rota in which she would be scheduled to work a 37.5 hour week rather than a 40 hour week. A fourth interaction, a conference call, took place on 16 March 2016, They reported that she had received confirmation from the client that they still wished for the services to be aligned and that they wanted the nurse in Ireland to be included in the same shift pattern as the UK staff, to ensure full service coverage of both the UK and Ireland 9.00 am – 9.00 pm on weekdays and 9.00 to 17.30 on weekends. The participants noted that there were no suitable internal redeployment opportunities for the complainant, though these would “continue to be looked at”.
Prior to this call, the complainant questioned what impact her leaving her employment would have on the complainant’s entitlement to receive State maternity benefit. The complainant would need to remain in employment until 4 April 2016 (16 weeks before her baby’s due date) in order to have an entitlement to State maternity benefit after the conclusion of her employment. The respondent was committed to ensuring that the complainant did not lose her maternity benefit, having regard to the likelihood (by then apparent) that the complainant would not accept the new rota and no suitable alternative employment would be found for her, thereby resulting in the complainant being made redundant.
The consultation ended with a fifth interaction, a conference call that took place on 23 March 2016 Nothing had changed since the previous meeting, so the common understanding was that the complainant was to be made redundant, though subject to the possibility that alternative vacancies might arise in the meantime. The respondent’s management asked the complainant to continue working until 3 May 2016, at which time the respondent would pay her in lieu of notice, such that her employment would formally end on 13 June 2016. As matters transpired, the complainant became ill and was on sick leave during the weeks leading up to 3 May 2016. The Respondent confirmed the relevant details in a letter dated 23 March 2016 and the complainant was given notice of redundancy on 3 May 2016. She was paid in lieu of notice but her final date of employment for the purposes of the Redundancy Payments Acts 1967 to 2014 was 14 June 2016.
A change in rota does not ground a complaint of discrimination on the “family status” ground.
The complainant’s complaint in this case is that the termination of her employment arising from the fact that she would not accept the new rota amounts to indirect discrimination on the family status ground. In order for the complainant to make out her case, the complainant must first prove that “an apparently neutral provision would put persons of a particular [family status] at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.” If the complainant proves such particular disadvantage, then the respondent may defend itself by demonstrating that the provision in issue is “objectively justified by a legitimate aim and the means of achieving that aim is appropriate and necessary.”
This is addressed in this section the question of whether the respondent’s change in rota can be said to put persons of a particular family status at a particular disadvantage. It is addressed in section 4 the objective justification for the respondent introducing a new rota.
The complainant has not, in her submissions, indicated that she will adduce any evidence to demonstrate that the new rota would put persons with family status at a particular disadvantage compared to employees without family status. The complainant is obliged to establish as a fact the new rota would put persons with family status at a particular disadvantage compared to employees without family status.
The category of people who (if the complainant is to succeed in her claim) must be likely to suffer particular disadvantage includes all men and women who either: are the parents of children under the age of 18, or are the parents or resident primary carers of persons with disabilities (provided those disabilities give rise to a need for care or support on a continuing, regular or frequent basis). That is an extremely broad category. The complainant must provide sufficient evidence that the members of that category are likely to be put at a particular disadvantage by the respondent’s decision to provide the service that its client requested. The authorities relied on by the complainant in her submissions do not support a complaint of indirect discrimination on the family status ground. In NBK Designs v Inoue EED0212 the Labour Court determined that a change from part-time work to full time work would put women at a particular disadvantage and (absent objective justification) would therefore be indirect discrimination on the gender ground. That case is of no assistance to your consideration of this aspect of the complaint for two reasons. Firstly, the respondent was not proposing to change the complainant’s rota from a part-time rota to a full-time rota. The complainant was already working a full-time rota. The change was significantly less drastic than in the NBK Designs case. In this case, the change was that – in every six week period – the complainant would have to work during a total of five evenings, one Saturday and one Sunday.
Secondly, in the NBK Designs case the Labour Court was expressly precluded by section 31(5) of the Act of 1998 from finding that the rota change in Ms Inoue’s case amounted to indirect discrimination on the family status ground. Having found gender discrimination, the Court could not find the same treatment to be discriminatory on the family status ground. None of the other cases cited by the complainant are of assistance in this case. Cases in which employees were – or were seeking to become – part-time employees are not relevant to this complaint. The complainant was a full time employee and would have remained a full time employee if she had changed to the proposed new rota. The proposed changes to the complainant’s rota were not sufficient to ground a complaint of indirect discrimination, especially having regard to the fact that the respondent offered the complainant the opportunity to work from home during the evenings and weekends on which she would be required to work. Cases in which the Labour Court or an equality officer found that changes in an employee’s rota gave rise to a claim for indirect discrimination on the gender ground are not relevant to a complaint, such as this one, which relates to the family status ground.
In the event that you decide that cases regarding changes from part-time rotas to full-time rotas are relevant to your consideration, then we submit that the decision of the Labour Court in The Minister for Justice, Equality and Law Reform v Therese Hand DEE985 (under the Employment Equality Act 1977) sets out the relevant standard regarding an employer’s discretion to determine whether it needs certain roles filled on a part-time or a full-time basis. In that case, the employee complained of gender discrimination when her employer declined to permit her to move from full-time to part-time working. The Labour Court rejected that complaint. Citing with approval the decision of the UK’s EAT in Clymo v London Borough of Wansdworth 1989 IRLR 241, the Labour Court held that:
“… it is for the employer, acting reasonably, to decide what is required for the purpose of running the organisation for which it is responsible.”
They submit that the enactment of the Act of 1998 has not materially affected the law as declared by the Labour Court in that respect. Employers have frequently and successfully defended discrimination complaints arising from disputes over access to part-time work. For example, in Tesco v Walsh DEE062 an employee sought to move from full-time to part-time work on her return from maternity leave. Having considered the matter, her employer declined her request because of staff shortages and summer holidays. However, the employer offered the employee alternatives, including giving her every Friday and every second Saturday off. The complaint was made on grounds of gender under the Employment Equality Act 1977. On appeal, the Labour Court held that the employer had acted reasonably having regard to the needs of the business and found no evidence of discrimination on grounds of gender.
In the complaint the respondent acted reasonably such that the complainant does not have any ground for a complaint on grounds of family status. The change in rota was objectively justified. It is submitted that the change in rota was objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary. The aim pursued by the respondent was to secure the renewal of the contract by delivering the efficiencies that they required. The respondent operates in a competitive environment. In 2010 the respondent had won the contract from a competitor. That competitor had previously won the contract from a third company. It was legitimate aim for the respondent to aim to retain that contract. Delivering the efficiencies required by the client was essential to the maintenance of the respondent’s relationship with that customer.
The means by the respondent chose to achieve its legitimate aim were appropriate. The new rota entailed only minimal changes to the complainant’s rota during four weeks out of every six. The new rota involved the complainant working one Saturday every six weeks; one Sunday every six weeks; and five late evenings every six weeks.
During those periods of the new rota that involved working unsocial hours, the respondent offered the complainant the opportunity to work from home. The complainant explored this opportunity by but had decided that this arrangement was unsatisfactory for her.
The respondent engaged in a detailed consultation process with the complainant the objective of which was to find a mutually acceptable outcome, if that was possible. The respondent made significant gestures towards the complainant during that consultation process, including by reducing the proposed length of the complainant’s working week from 40 hours to 37.5 hours. The respondent was open to considering any reasonable proposal that the complainant wished to make to ameliorate the impact on her of the introduction of the new rota. The complainant did not make any alternative proposal. She indicated that the only rota she was willing to work was her existing rota. The respondent made it clear that the complainant could be accommodated in a different role within the Respondent’s organisation if an appropriate role could be found. The complainant had previously changed roles, from a field based nurse to a telephone support nurse, in 2013. The Respondent has 50,000 employees across the world. Many of the roles can be carried out remotely from any location, including Ireland. The search for a suitable alternative role required the engagement of both sides in order to find a role that the complainant would find suitable for her.
The means by the respondent chose to achieve its legitimate aim were necessary. The contract renewal agreed with Merck required the integration of the telephone support services in the UK and Ireland. As part of this integration the client required six people – one based in Ireland and five based in the UK – to collectively cover the entire of the agreed rota. If the Irish-based role was made exempt from working any evenings or weekends, then the five UK-based telephone support staff would have been required to work additional evenings and weekends to make up the difference. This would not have been an integrated service for the client and the client reasonably insisted on having all six people work an integrated rota.
We note the assertion in the complainant’s submission that the complainant’s “position of employment was not in fact redundant.” This assertion is not relevant to this complaint because this complaint has been made under the Employment Equality Act 1998 as amended “the Act of 1998”. The Act of 1998 does not make provision for an employee to challenge the validity of a redundancy situation. We note that the complainant lodged, but then withdrew, a complaint under the Unfair Dismissals Acts 1977 to 2015, in which complaint she could have challenged the validity of her redundancy.
Without prejudice to the foregoing point, we respectfully submit that it is a well-established principle of Irish law that the decision by an employer to change the times during which work will be done is a valid ground for redundancy. Section 7(2) of the Redundancy Payments Act 1967 as amended (“the Act of 1967”) provides that
“ … an employee shall be taken to dismissed by reason of redundancy if, for one or more reasons not related to the employee concerned, the dismissal is attributable wholly or mainly to -
(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish
In Dinworth v Southern Health Board 284/1977, the Employment Appeals Tribunal (EAT) determined that, for the purposes of the Act of 1967 "day work is work of a different kind from night work."In Kelleher v St James Hospital Board UD59/1977, the EAT determined that, for the purposes of the Act of 1967 "part-time work is work of a different kind from ‘on-call’ work”.
A significant change in the time when work occurs is clearly a basis for a redundancy. For that reason, the complainant’s assertion that her “position of employment was not in fact redundant” is not correct.
The respondent had proper regard to the complainant’s family status. The respondent engaged in a thorough and fair consultation process with the complainant in an effort to find a solution that would be mutually satisfactory having regard to the complainant’s family status
The respondent is part of an organisation that employs 50,000 people across the globe. Many of these roles can – and are – carried out from Ireland. It was entirely appropriate for the respondent, as a part of the consultation process, to allow the complainant to identify any of those roles in which she had an interest.
The complainant’s submission at section 4.7 is misconceived. The complainant makes submissions in respect of the respondent’s alleged failure to provide "reasonable accommodation as a consequence of the [complainant’s] family status." The expression “reasonable accommodation” is used in the Act of 1998 exclusively in relation to people with disabilities. Subject to certain exceptions, section 16 of the Act of 1998 requires employers to provide reasonable accommodations to employees who have disabilities. Neither section 16 nor any other provision of the Act of 1998 requires an employer to provide reasonable accommodation in respect of an employee with family status.
The complainant’s submission at section 4.7 asserts that “at no stage did the respondent seek to address any possibility of accommodating the [complainant] in respect of her family status by seeking to identify possibilities for job-sharing or part-time work.” That assertion is misconceived. The respondent’s management would have been happy to consider part-time work or job-sharing (on the new rota) as an alternative to redundancy. One of the complainant’s successors in the role – the person currently holding the role – recently moved to part-time working. It was the complainant herself who excluded the possibility of job-sharing or part-time work. The minutes of the meeting of 1 March 2016 record in the section “update from YM following consideration of shift pattern and rota with her family” reflect the following statement made by the complainant:
“The proposed shift pattern won’t work and the only option YM has is to continue working 9-5 Mon-Fri.”
The respondent’s management would have considered any reasonable alternative proposed by the complainant provided it met the necessary obligation of meeting the customer’s reasonable requirements.
Findings
I note that this Company is a multinational organisation.
I note that the support service where the Complainant worked provided support for patients and clinicians who use or prescribe treatments for multiple sclerosis and growth hormone deficiency.
I note that there had been some alignment between Ireland and UK support services. However in 2016 there had been a global corporate restructuring with Ireland and the UK being brought together as a single cluster for certain operational purposes.
I note that their client company had sought to achieve efficiencies in the contract. Employees working in the UK on this contract were reduced from 15 to 12. There was redeployment from field operations to telephone support reducing the field staff from 12 to 7 and increasing the office from 3 to 5.
I note that there was an integration of Irish and UK based telephone support functions. So it was agreed that the Irish service would be integrated with the UK telephone service. This meant devising a 6 week rota for the Complainant, which involved some later shifts and week-end work. In a six week period she would work 5 evenings to 9.00pm and 1 Saturday 9.00am to 5.30pm.
I note that considerable consultation and discussion failed to provide a solution resulting in the position becoming redundant.
The Complainant has claimed that the Respondent’s failure to take into account her family status with the changes in the roster and termination of her employment were grounds for a complaint of discrimination on grounds of family status.
I find that the Claimant in order to succeed in making her case has to establish that the change in the roster can be said to be putting persons of a particular family status at a particular disadvantage.
I find that the facts as established by the Complainant are insufficient to discharge the initial probative burden required of her i.e direct discrimination.
If one was to look at the possibility of indirect discrimination then the allegation of a breach of the Act may be challenged by the establishment of objective grounds.
In accordance with this Act the Respondent has a full defence if it can objectively justify its actions
In this case I find that the Respondent has set out cogent reasons why these changes had to be implemented.
I note that in their discussion they modified their plans for the Complainant to such an extent that the net changes for her was working 5 evenings to 9.00pm and 1 Saturday to 5.30pm in a 6 week cycle. It is noted that working from home at weekends raised problems.
In this case I find that the Respondent underwent a significant global corporate restructuring.
I note that there were a number of redundancies and a realignment of Ireland and UK service provision.
I note that the Respondent through extensive consultation sought to arrive at an accommodation for the Complainant’s situation but without avail.
I find that the Respondent has a right to restructure for business needs.
I find that the means by which the Respondent chose to achieve its operational objectives were appropriate based on the demands of the main client.
I find that under the circumstances the proposed changes were minimal.
I find that any reference to reasonable accommodation under this Act is exclusively in respect of disability.
I note that the Complainant failed to consider any job sharing or part time work.
I find that the Complainant was unable to put forward any alternative suggestion but she would not change from her existing roster.
The actions of the Respondent could in the application of a general rule amount to indirect discrimination.
In this case I find that any possible indirect discrimination was objectively justified by the operational needs as set out by the Respondent.
.
Therefore I find that the Respondent has objectively justified their actions and as a consequence her complaint cannot succeed.
Decision:
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the above stated reasons I have decided that the complaint fails.
2) Unfair Dismissals Act CA 5894 -002
This complaint was withdrawn.
Eugene Hanly
Adjudication Officer
Dated: 5th May 2017