Complainant

Respondent

Parties

Denise O' Shea

Health Service Executive

Representatives

Emma Davey BL instructed by Niall Moran Solicitors

William Toomes HR

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-00009784-001

17/02/2017

In January 2015, the Complainant began a one year post graduate diploma in Community mental health nursing in St. Angela’s College in Sligo (Sligo course).

She retained the permanent status of her substantive post while undertaking the post graduate diploma.  

In April 2015, the Complainant sought the approval from her nurse practise development coordinator to enrol in a further post graduate diploma in Cognitive behavioural therapy in University College Cork (UCC course).

This was declined by the Respondent as the Complainant was still completing her Sligo Course.

Notwithstanding this, the Complainant decided to proceed with and self fund her first year of study on the UCC course.

The Complainant commenced her first year of study on the UCC course in September 2015.

The Complainant applied for funding of and clinical placement during the second year of the UCC course in 2016.

This was ultimately refused by the Respondent on the basis that the Complainant was on maternity leave she did not fulfil the criteria for funding for the academic course or attendance in the workplace during her maternity leave.

The Complainant’s case was that the Respondent has breached Section 8 (1) (c) of the Employment Equality Acts in circumstances where she was effectively barred from continuing or even applying for training or work experience simply because the Respondent would not furnish a letter of support or funding based or her pregnancy and maternity leave.

The Complainant’s case is that she was treated less favourably than other members of staff by refusing to provide a letter of support and/or funding which would have seen her achieve a specialist nursing qualification.

The Complainant claimed that she was discriminated against by virtue of the Respondent’s inaction, delay, misrepresentation and unreasonable behaviour in respect of the Complainant’s request for a letter of support and funding for the second year of the UCC course.

In February and March 2016, the Complainant contacted the nurse practise development coordinator seeking funding for the second year of the UCC course. The Complainant gave evidence that she received a positive response to her application. In April 2016, the Complainant was furnished with two forms, an application form for a specialist course and circular 020/2014.

The Complainant met with the temporary acting Director of Nursing on the 25th of May 2016 to discuss her application to pursue her studies on the UCC course. The Complainant gave evidence that she showed the acting Director of Nursing a letter from UCC dated the 11th of April 2016 which set out the course requirements. The Complainant did not give a copy of this letter to the acting Director of Nursing and she did not request a copy of same.

The Complainant explained to the acting Director of Nursing that UCC required the Respondent to fill out a letter of support and that the Complainant was required to complete three hours of clinical placement per week during the UCC course.

During the meeting the Complainant advised the acting Director of Nursing that she was expecting her first child in November 2016 and explained that she was planning to complete her studies during her maternity leave. The Complainant explained that she would need access to clinical placement hours during the academic year and while on maternity leave.

The Complainant left the meeting feeling that it had been very positive and that she was being supported by the Respondent to progress into the final year of her UCC course.

In the following days, the Complainant received a telephone call informing her that upon taking advice the Respondent was refusing to provide a letter of support. This was confirmed in writing by the Respondent stating “further to your request to do work experience as part of the CBT course during maternity leave, I have discussed your request with the HR specialist mental health and I regret to inform you that this is not permissible”.

The Complainant took issue with the fact that no reason was furnished as to why the support for her clinical placement request was refused. The Complainant felt that the decision was taken unilaterally without her consultation or with her line manager.

On the 17th of June 2016, the Complainant sent an email to the acting Director of Nursing and her secretary. The email referred to the required three hours a week clinical experience which the complainant was required to undergo and how she was prepared to purchase her own personal indemnity insurance in an effort to facilitate the work experience. The Complainant was advised by the Respondent that the matter was being looked into and she was furnished with a chain of emails between the acting Director of Nursing and the HR specialist on the matter.

The acting Director of Nursing was on annual leave for two weeks. The Complainant gave evidence of the delays in a response to her proposal on the indemnity insurance.

On the 12th of August 2016, the nurse practise development coordinator advised her that her application was not being progressed any further. The reason given for this was her pregnancy and impending maternity leave. The Complainant was advised to follow up with the acting Director of Nursing.

The Complainant was very upset on hearing this and asked for clarification as to what advice had been given to form this decision.   She felt that there was a failure to adhere to fair procedures in making the unilateral decision to refuse the letter of support and the funding application.

The Complainant submitted that she had reasonably expected that she could begin the second academic year of her UCC course.

The Respondent replied to her correspondence setting out their position namely that the Complainant undertook the UCC course on her own volition while still doing the Sligo course which was approved and funded by the Respondent. It did not under any circumstances accept the Complainant’s understanding and representation of discussions that had taken place. The process for the allocation of funding approval for courses did not allow her acting Director of Nursing to approve same. They pointed out that there were obvious issues relating to an employee doing clinical placement during maternity leave. They went on to say that even if the placement while on maternity leave could be accommodated in a different manner, the question of course funding remained an outstanding issue. At no stage in the process was the Complainant approved or told she was approved for funding.

The Complainant gave evidence that the Respondent was well aware that if funding was refused, she was willing to self-fund the second year of her UCC course. She also gave hearsey evidence of a student working for the Respondent in a different part of the country being accommodated by the Respondent in clinical placement during her maternity leave. No exact details of this was forthcoming.

The Complainant’s legal representatives submitted that special protections are afforded to pregnant workers by virtue of the Employment Equality legislation both at national and European level.   Such protection has been explicitly well settled law since the decision of Dekker in 1988. That decision was endorsed by further decisions of the European Court of Justice and incorporated into Irish law under Section 6 (2) (a) of the Employment Equality Act 1998 – 2005.

The Complainant set out that the Respondent had breached its obligation under the Nurses and Midwives Act 2011 by discriminating against the Complainant on the grounds of her pregnancy.

The Complainant relied on the case of Gardiner –v- Mercer Human Resource Consulting [DEC-E 2006-007] and the Court of Justice case in Napoli –v- Ministero Della Giustizia (case C-595/12).

The Complainant submitted that the Respondent had failed entirely to recognise its obligations towards her as a pregnant employee with a family status.

The Complainant set out that the discriminatory treatment caused her significant personal and financial hardship as well as a loss to her professional development in access to promotion.

The Respondent’s case is that in May 2015 the Complainant was advised of Circular 020-2014 which states that applicants for funding of programmes of education must not have already received funding for a specialist course within the past thirty-six months.

Without any consultation with the nurse practice coordinator or her line manager, the Complainant enrolled in first year of the UCC course.

In June 2016, the Complainant contacted the nurse practice coordinator to request funding for the second year of the UCC course. She was advised that the terms of the above circular still applied and she did not meet the criteria for support.

She also contacted the acting Director of Nursing requesting financial support and that she be allowed to return to work from maternity leave to complete work experience as part of her second year in the UCC course.

The Respondent relied on the correspondence set out above stating that it would not be possible to agree to the request due to the fact that she was on maternity leave.

Its position was that the Complainant had embarked upon the UCC course on her own volition despite being advised by the nurse practice coordinator of the circular and the constraints of same and that the Respondent would not be supporting her in her pursuit of the UCC course.

The decision to complete the UCC course was made by the Complainant in her capacity as a private citizen and that the Respondent cannot be held responsible for any part of this action. If it was to concede on this line, then all employees could complete courses on their own volition and claim that the Respondent had a responsibility to support them in their personal endeavours.

The Respondent’s case is that the Complainant had not been discriminated against. From May of 2016 the Complainant was fully aware of the Respondent’s position. The Circular was furnished to the Complainant and it was discussed with the Complainant. It had never received the letter from UCC setting out their requirements. The Complainant had not followed the correct procedures in applying for the UCC course and her line manager wasn’t aware that she was undertaking the UCC course. The course took place in UCC on Monday nights. The Complainant left work early to travel to Cork from the Midlands.

Their further position is that there is no facility to return to the workplace while on statutory maternity leave.

I have had the benefit of substantial oral submissions and written submissions in this case.

Some of the facts of the case are agreed. Others are contested.

It is agreed that the Complainant made an application for the Sligo course and commenced same in January 2015. In April 2015, she applied for approval to undertake the UCC course starting in the Autumn of 2015.

There are emails and correspondence between the parties which was presented to me. HR Circular 020/2014 applies. The circular is a clearly communicated express policy. The circular was updated in 2014 and its scope applies to the sponsorship of nurses and midwives to undertake programmes of education and the conditions under which they will be sponsored by the Respondent.  

I have read over the circular. It contains a number of conditions that must be fulfilled. It sets out on page 2 paragraph A

“ a sponsorship agreement and/or learning contract setting out the arrangements for financial support and study leave or external placement where required must be completed at service/organisation level”.  

The conditions are set out in the Circular. Condition 1 relates to eligibility and it states that the applicant must not have already received funding for a specialist course within the last thirty-six months (or less if specifically required by service need).

No evidence was presented as to service need, bar a passing reference by the Complainant.

On the issue of compliance with the terms of the Circular, I accept the evidence of the Respondent in this regard. Their witnesses came across as more credible as to the events that took place and what assurances (if any) were given to the Complainant. Based on the evidence that was presented to me by the Respondent, I believe that the Complainant would not have been accommodated in her request for work experience/clinical placement even if she was not on maternity leave during the academic year of the UCC course. Management in the Respondent were not aware that the Complainant was undergoing two diploma courses at the one time for part of 2015 and that the Complainant was leaving work to travel to Cork on Mondays to attend her UCC course lectures.

This case is at odds with most claims relating to protection of pregnancy and maternity leave. In this case, the Complainant wishes to return to the workplace while on maternity leave for a period of 3 hours per week to undertake work experience/clinical placement during her maternity leave.

The purpose of maternity leave is to protect the woman’s biological condition and the special relationship between a woman and her child over the period which follows pregnancy and childbirth.

On the issue of discrimination, the Court of Justice has held that no other interest, not even economic interest, can prevail over the protection of pregnancy and maternity leave.

I note that the Complainant was to receive her full pay during her maternity leave.

Article 15 of the Recast Directive provides:

“Return from maternity leave

A woman on maternity leave shall be entitled, after the end of her period of maternity leave (emphasis added), to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence.”

Having considered all of the evidence presented to me, I do not find that the Complainant has raised a prima facia case of discrimination.

I find that the Complainant did not qualify under the terms of Circular 020/2014 for funding of the UCC course and the Respondent was entitled to decline the Complainant’s request to return to the workplace during a period of protective leave which she opted to take up in main.

The Complainant is not entitled to be selective as to elements of her maternity leave from the Respondent. The Respondent was entitled to maintain adherence to the terms of its maternity leave policy. Any variation from agreed policies and procedures would have implications for other staff members and the organisation of the Respondent as a whole.

It is accepted that there is no automatic right to return to work after maternity leave. By extension of same, there is no automatic right to return to work during maternity leave.    

I find that the complaint is not well founded and dismiss same.

Discrimination. Work experience / clinical placement during maternity leave