ADJ-00012428

Complainant

Respondent

Anonymised Parties

A healthcare assistant

A healthcare staffing agency

Representatives

Self

Michael McGrath Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00016366-001

15/12/2017

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

CA-00016366-002

15/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00016366-003

15/12/2017

The complainant is an agency worker who has been working as a Health Care Assistant (HCA) through the respondent company. The claimant commenced working with the respondent in January 2011 and has worked in a General Hospital, hereinafter referred to Hospital A and more latterly in a hospice. Rate of pay: Basic €16.43 per hour.

The Complainant submitted her complaint to the Workplace Relations Commission (WRC) under the following on 15/12/2017:

1.       Section 7 of the Terms of Employment (Information) Act, 1994 – Ref- CA-00016366-001.

2.       Section 77 of the Employment Equality Act, 1998 – Ref – CA-00016366-002.

3.       Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 – Ref – CA00016366-003.

The Complainant is employed by the Respondent and has approximately six and a half years’ service as a Healthcare Assistant. All work for the Respondent has been performed at Hospital A where, in her own words, she has been happy and enjoyed a good working relationship with staff and patients.

In November 2016there was a change to the way shifts were allocated to agency staff. When the Complainant first commenced employment the agency notified the Complainant by telephone of what shifts she was required to work and then she was notified directly by nursing administration who were employees of Hospital A.

In November 2016 a member of the agency’s management held a couple of meetings with agency staff to inform them of the proposed introduction of a phone ‘app’ that would be used in future to notify staff of shift availability. There was a promise to long serving agency staff that they would be looked after however this has not been the case.

The Complainant spent €200 on the purchase of a new mobile telephone that would receive notifications and also become a method of recording working time.

The Complainant alleges that she has not been getting her shifts.

As per the employment contract staff whilst working are not allowed to carry mobile telephones and yet the shifts are made available day and night on this app on a first come first served basis. Very often the Complainant would check to see what shifts were available only to discover they were all gone.

Being a conscientious person, the Complainant did not carry her phone with her when she was working, this she believes, was the cause of her losing shifts. It was pointed out at hearing that some of her colleagues do in fact carry their phones with them during working time.

The Complainant summarises her complaint as follows:

1.       “Contract states no phones allowed on duty.

2.       I never signed anything to change over to the ‘apps’

3.       I paid €200 for a phone I am not getting work on.

4.       As an older person by the time my reading glasses are put on the shifts are gone, I feel this is discrimination”.

When the Complainant phoned the Respondent to voice her concerns she was told on a number of occasions “This is new, give it time” or “This is an experiment, it’s the way forward”

Agency management would say “First come, first served”. Management did not care and showed no empathy.

In relation to the work at the hospice, the Complainant was recommended to the Director of Nursing and has very positive things to say in relation to the hospice but points out that due to her reliance on public transport she must get up at 4.30am in the morning and is often not home until after 10.00pm in the evening.

Conclusion.

It is alleged by the Complainant that the Respondent have not treated her fairly. The work she has at the hospice is work she found herself but the Respondent agency are paying her wages.

Since the introduction of the phone ‘app’ the Complainant must rely on State benefits to supplement her reduced earnings.

BACKGROUND TO THE ISSUE

Introduction of mobile phone application

On Friday the 2 December 2016 the respondent company introduced a mobile phone application for notification of shift allocation and electronic sign-off of timesheets for workers in Hospital A and other locations. The company also uses text, phone and e-mail to advise or offer individuals shifts and to understand if agency workers wish to accept certain shifts and determine their availability. Agency workers then indicate their availability/willingness to work shifts which are available.

In practice, the shifts which the claimant was being made aware of were offered to a limited group or ‘preferable pool’ of workers who were regularly working particular shifts in Hospital A. It is the preference of the claimant and the respondent company, given the nature of the claimant’s work as a HCA, to have continuity of care with the patients and for the same agency workers to carry out the same shifts. The claimant was therefore offered shifts in her preferred location, as she would have been prior to the introduction of the app.

The application was introduced following appropriate training to those staff who use it. This included; Onsite training days, ‘one to one’s’ with a nominated person from the respondent and the provision of a booklet or access to a youtube video. This training was provided to the claimant as well as all agency workers who were required to use it.

The App is currently in 20% of the company’s business and will be introduced across the entire business in the near future. There have been no other complaints regarding the use of the app from any other agency worker. In fact, the feedback has been very positive. The claimant has worked the same number of shifts (proportionally) in 2017 when using the App as she did in 2015 prior to the App being introduced.

HSE contract - Respondent ‘Tier 2’ for HCA’s in Hospital A from 1 September 2017

A new HSE contract for agency staff came into effect on 1 September 2017. The result of this was that the respondent company was No 2 choice or ‘Tier 2’ for Healthcare Assistants (HCAs) including in Hospital A, with several other agencies. (Approx. 3). The practical effect of this was that the other Tier 1 agency would, within a defined period have the option to provide agency workers prior to the Tier 2 agency workers. After this period Tier 2 could look to fill remaining vacancies.

Claimants restricted availability

It is the Respondent’s position that the introduction of the application has not changed the shifts which the claimant has been offered. In fact, the claimant herself has restricted her own availability in terms of the shift she is willing to carry out. The preference of the client is of HCA’s to work 12-hour shifts from 8-8. The claimant has sought to work short shifts, i.e. 8-5 and 8-2 on a Sunday. The provision or allocation of shifts is purely at the request of the client and naturally the respondent cannot place the claimant on a shift which the client does not require.

Claimants use of the App

The claimant has used the app extensively. The claimant has both accepted shifts and refused shifts. This demonstrated her ability and practice of using the application. The claimant has accepted and then has cancelled out of shifts on a number of occasions. In February 2017, the client indicated that they were unhappy with the number of shift cancellations by the claimant and this was communicated to her.

On 16 august 2017, the claimant indicated that she was considering leaving the Hospice due to the early start time and how long it took to commute. She spoke with the nursing admin to confirm that she will now be booked for long days starting at 9am-7.30pm as this suited her better.

Claim under the Terms of Employment Information Act

While no detail is provided it appears that the claimant is claiming under section 5 of the Act that she was not notified in writing of a change in the ‘particulars’ of employment which are outlined in Section 3 of the act. The introduction of an application for the purpose of notifying the claimant of which shifts are available for her to work if she wishes is not a ‘particular’ which is included in Section 3 of the Act.

The claimant’s ‘Terms and Conditions’ states;

‘The Respondent (name inserted) will give you notice of hours of work which are available to you’

This has not changed.

Notwithstanding the above the claimant was training and provided with a booklet outlining the introduction and use of the application. It is the company position that her claim must fail.

Claim under the Part Time Work Act

No detail has been submitted is respect of this claim and no full-time comparator has been adduced. For the purpose of clarity section 7 (4) of the Act deems that the comparator must be a relevant agency worker as opposed to a direct hire. It is the company position that the respondent is not in breach of this act in any manner with respect to the claimant.

Claim under the Employment Equality Acts

The claimant has submitted a claim that she was discriminated on the grounds of ‘disability’. The respondent strongly contends that it did not discriminate either directly or indirectly against the complainant on grounds of disability or any other equality ground. The claimant is contending that the fact that she wears glasses and must put them on before using her phone constitutes discrimination.   It is the company position that the claimant’s claim is without merit and must be dismissed.

THE LAW

The complainant is alleging that she has been discriminated on the grounds of disability by the introduction of an application which notified her of opportunities for shifts. The Employment Equality Acts, 1998 – 2011 define the term ‘disability’ and what is meant by the term ‘discrimination’.

Section 2(1) of the Employment Equality Act of 1998 defines ‘disability as-

a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body.

b) The presence, in the body of organisms causing, or likely to cause, chronic disease or illness,

c) The malfunction, malformation or disfigurement of a part of a person’s body

d) A condition or malfunction which results in a person learning differently from a person without the condition or malfunction

e) A condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which previously existed but no longer exists, or which may exist in the future of which is imputed to a person.

Direct discrimination is defined as occurring where one person is treated less favourably than another is, has been or would be treated and that person is of a different race, gender, civil status, family status, sexual orientation, religious belief, age, disability, or membership of the traveling community.

Direct discrimination consists of two elements as laid out in Southern Health Board v Mitchell [2001] ELR201 states that

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination” 

It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

This test was further analysed in Green Line Pallets Limited v John Whyte [2012] EDA1225

“The test thus formulated has three stages: -

1. The Complainant must prove the primary facts upon which they rely in alleging discrimination;

2. The Court must evaluate those facts, if proved, and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination; an

3. If the Complainant fails at stage 1 or 2 he or she cannot succeed. If the Complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.”

With reference to Labour Court determination in the matter of Melbury Development Limited v Valpeters [EDA0917]

“Section 85A 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 establish 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.”

The complainant has failed in this case to establish any concrete evidence to demonstrate that she was discriminated against due to a disability or any other ground. The complainant has failed to establish less favourable treatment, she has failed to provide a comparator who was treated more favourably than her, failed to demonstrate why her treatment by the company amounted to discrimination. It has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited. It is only when she has discharged this burden to the satisfaction of the adjudicator that the burden shifts to the respondent to rebut the inference of discrimination raised. As such, the respondent would argue in the strongest terms possible that the complainant has failed to discharge this burden of proof.

CONCLUSION

As the claimant has not established a prima facie case of discrimination the Respondent requests that the Equality Officer reject this complainant’s allegation under the Employment Equality Acts 1998-2004. Furthermore, the company position is that the claim under the Terms of employment Information act 2001 and the Part time work acts 2001 must also fail.

The Respondent has quoted extensively from section 2(1) of the Employment Equality Act of 1998:

The complainant is alleging that she has been discriminated on the grounds of disability by the introduction of an application which notified her of opportunities for shifts. The Employment Equality Acts, 1998 – 2011 define the term ‘disability’ and what is meant by the term ‘discrimination’.

Section 2(1) of the Employment Equality Act of 1998 defines ‘disability as-

a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body.

b) The presence, in the body of organisms causing, or likely to cause, chronic disease or illness,

c) The malfunction, malformation or disfigurement of a part of a person’s body

d) A condition or malfunction which results in a person learning differently from a person without the condition or malfunction

e) A condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which previously existed but no longer exists, or which may exist in the future of which is imputed to a person.

Direct discrimination is defined as occurring where one person is treated less favourably than another is, has been or would be treated and that person is of a different race, gender, civil status, family status, sexual orientation, religious belief, age, disability, or membership of the traveling community.

This raises the questions, is the wearing of glasses for reading a disability, and if so, was the Complainant in any way discriminated against by her need to wear reading glasses?

I believe the answer to both questions is No. When one considers the definition from the Act, as outlined above then the wearing of glasses for reading is not a disability. In 2014 a study by Bayer showed that 56% of the population of Ireland was reported as occasionally wearing glasses, while a further 8% chose to wear contact lenses, meaning that almost two thirds of the population has an eye condition that requires some type of correction.

From what I heard at the hearing it would appear that any staff member carrying their phone with them during working hours in the hospital may have had an advantage over those who were obeying the rules in relation to phones. This is an issue that management should consider addressing however it does not present the basis for a complaint of discrimination on any of the nine grounds included in the Act.

The Complainant has failed to discharge the burden of proving that a prima facia case of Discrimination exists and it is for this reason this part of her complaint must fail.

 Claim under the Part Time Work Act

The Respondent representative very clearly stated the following:

“No detail has been submitted is respect of this claim and no full-time comparator has been adduced. For the purpose of clarity section 7 (4) of the Act deems that the comparator must be a relevant agency worker as opposed to a direct hire. It is the company position that the respondent is not in breach of this act in any manner with respect to the claimant”

I am unable to disagree with the above statement and it is for this reason this part of the complaint must fail.

Claim under the Terms of Employment Information Act

While no detail is provided it appears that the claimant is claiming under section 5 of the Act that she was not notified in writing of a change in the ‘particulars’ of employment which are outlined in Section 3 of the act. The introduction of an application for the purpose of notifying the claimant of which shifts are available for her to work if she wishes is not a ‘particular’ which is included in Section 3 of the Act.

There is a comprehensive list contained within the Act of what particulars must be included. The Respondent’s representative quite correctly points this out and again I am unable to disagree with him. It is for this reason alone that this part of the complaint must fail.

I have considered these complaints in depth and must conclude that in all three the complaints are not well found and must therefore fail.

For the reasons outlined above the complaints fail.