Complainant

Respondent

Anonymised Parties

Clerical Worker

Health Service Provider

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-00010658-001

05/04/2017

The complainant commenced employment with the respondent in January 2009 on a fixed-term contract as a catering assistant in a hospital. In October 2009 the complainant suffered an accident in work as a result of which she was advised that she would be unable to return to her role in the catering section. In October 2012, following liaison with the respondent’s management and Occupational Health (OH) section, the complainant returned to work and was redeployed to the hospital switchboard. The complainant has, since that time, sought to have her terms and conditions of employment brought into line with those applicable to switchboard staff.   The respondent has not to date done so. In August 2014 the complainant was placed on a contract of indefinite duration.

The complainant, as a result of a workplace accident, suffers from a disability.

The respondent, in line with their duty of reasonable accommodation, redeployed the complainant to switchboard duties but has not changed her terms and conditions of employment.

The complainant has, as a result, been treated less favourably than the other staff on the switchboard who are fulfilling the exact same roles as she is.

The complainant receives a lesser gross annual salary, is required to perform night shifts, has no input into her roster, is redeployed temporarily to other departments and has not been furnished with particulars of her terms and conditions of employment.

This equates to discrimination on the grounds of disability.

The respondent went over and above its legal obligations by sourcing an entirely new role for the complainant in the position of locum clerical staff in the switchboard department.

Whilst there was some initial, temporary redeployment of the complainant in 2013 there has been no such redeployment within the last 4 years.

The complainant is and has been paid more on the catering scale than she would have received on the equivalent point of the clerical scale. The complainant therefore has not been treated less favourably as regards pay but was allowed remain on her catering rate of pay by reason of her reasonable accommodation.

Comparable clerical staff are also performing night duty and the complainant is not being treated less favourably than her able-bodied colleagues in this regard.

No individual employee has input into the roster but swops are facilitated wherever possible. No complaints have been received from the complainant in this regard.

Aspects of the complainant’s claim are out of time and the complainant has failed to establish a prima facie case from which discrimination can be inferred.

The complainant commenced employment with the respondent in January 2009 as a Catering Assistant on a Fixed-Term Contract. In October 2009 the complainant suffered a knee injury that rendered her unfit for work until October 2012. Prior to her return to work the complainant engaged with the respondent’s OH Dept. which advised that she would be unable to engage in difficult physical work but would be available for sedentary work and light duties. The complainant was then appointed as a locum clerical officer to the Switchboard Dept. There were initial issues regarding this appointment with the complainant being redeployed to duties outside of the switchboard some of which required physical work. The complainant raised these issues with the OH Dept. who wrote to management on her behalf. The complainant also requested details of her terms and conditions of employment that reflected her transfer to the switchboard. In August 2014 the respondent corresponded with the complainant advising her that she was now eligible for a contract of indefinite duration and attaching a copy of this permanent contract for her signature.   This contract stated that the complainant was employed as a Catering Assistant and that she would be paid according to the salary scale applicable to that position. The complainant refused to sign this contract as she felt it did not reflect the actual position that she now occupied, i.e. a member of the clerical staff in the Switchboard Dept.

The main thrust of the complainant’s case is that due to her disability the requirement for reasonable accommodation led to her transfer to the clerical staff in the Switchboard Dept. This transfer resulted in the complainant being treated in a less favourable manner than her colleagues in that Dept. who perform the exact same role and duties as she does. This treatment includes receiving a lesser gross annual salary, being required to perform night shifts, not having an input into her roster, being redeployed to other duties and not being furnished with accurate written statements of her terms and conditions of employment.

The respondent for their part asserts that the complainant is under a misapprehension regarding the issue of salary. The complainant has been paid according to the catering scale and is therefore actually being paid in excess of the equivalent grade on the clerical scale.   In naming comparators, no reference had been made to the point on the clerical scale that these comparators occupy.   Furthermore, the issues relating to redeployment to other departments occurred in 2013 and are therefore out of time. Other comparable members of the staff of the switchboard also are required to work night shifts and the respondent is not discriminated against in that regard.   No member of staff has an input to their roster. The respondent issued a statement of the terms and conditions of employment to the complainant in 2014 but the complainant refused to sign it.

The complainant lodged her complaint form with the WRC on 5 April 2017. Section 77(5)(a) of the Employment Equality Acts states:

Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

It is clear that issues regarding the redeployment of the complainant to other departments occurred in 2013 but it is equally clear that the redeployment ceased in that year and no further instances of that type have happened since then. I therefore find that aspect of the complaint to be out of time.

Section 77(6A) of the Act states:

For the purposes of this section –

(a)    discrimination or victimisation occurs –

(i)                  if the act constituting it extends over a period, at the end of that period…

This section encompasses a situation where there is a series of separate acts which are sufficiently connected so as to form a continuum. As stated by the Labour Court in County Cork VEC v Hurley (EDA1124), “under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule or principle which has a clear and adverse effect on the complainant.”

The complainant’s representative argued that the failure to regularise the terms and conditions of employment of the complainant was and is ongoing and had occurred every day up to the issue of the claim and that this constitutes a continuum. The respondent’s representative stated that even if there was failure to regularise these matters, which they disputed, it still did not constitute less favourable treatment on their part.   The respondent in 2014 did issue a contract of indefinite duration to the complainant setting out terms and conditions of employment but the complainant did not sign it. As noted above, this document stated that the complainant was employed as a catering assistant and that the catering wage scale was the applicable scale. I can quite understand that the complainant had difficulties in relation to this document particularly having regard to the issues regarding redeployment that she had suffered in the previous year. It is a great pity though that the HR Department, despite some meetings taking place, did not clarify with the complainant the actual position regarding her salary scale. The complainant’s position, as set out in her submission, is that the contract was not an accurate reflection of her employment status as it did not recognise her position as a member of the switchboard staff and place her on the scale applicable to that position.

From the evidence at the hearing it seems that the complainant formed the opinion regarding her salary from a conversation with a member of the clerical staff who was on a salary in excess of the complainant’s salary. This disparity could be due to a number of factors, not least being what point of the scale was applicable to that member of staff.   It would appear, from the evidence provided at the hearing, that the complainant, in remaining on the catering wage scale, was at all times actually better off financially than if she had in fact been placed on the clerical scale.

The clerical scale is a fifteen-point scale whereas the catering scale, however, is a nine-point scale. The point was made on behalf of the complainant (who is now on the 9th point of her scale) that going into the future she would suffer financially as regards wage rates and as regards pension calculations and therefore would be discriminated against in the manner set out in the complaint. The respondent stated that it was accepted that as and from 1 April 2019 the complainant would be less better off if she remained on the catering scale and an offer had been therefore made, through the complainant’s legal advisors, to transfer her to the nearest point on the clerical scale not below her present salary. I note that the letter in this regard is dated 7 February 2018 and that offer appears to be dependent on the complainant withdrawing her complaint to the WRC. I further note that in their submission the respondent states that this is now an open offer.

It appears to me that there are two elements to part of the complaint. These elements are that there was a failure to issue the complainant with the appropriate statement of her terms and conditions of employment and arising from that failure that the complainant was on a salary that was less than that enjoyed by colleagues performing the same work as she was.   As noted above the evidence presented by the respondent and not refuted by the complainant is to the effect that her salary was above that of a colleague on the same point of the clerical scale. The wage scales appropriate to both roles were provided to the hearing. The complainant had named four comparators but did not provide any details as to their salaries.

That then leaves the issue of the complainant not being furnished with the appropriate statement of employment. In examining this matter and applying the guidance laid down by the Labour Court I do not believe that the respondent kept in force in the relevant period a discriminatory principle which had a clear and adverse effect on the complainant such as would form a continuum. The contract issued in 2014 did class the complainant as a catering assistant on the catering scale but it would appear, although unfortunately this was not clarified to the complainant, that her catering rate was maintained in order to ensure that she was not adversely affected as regards salary. I therefore find that this element of the complaint is out of time.

Section 6(1) of the Act states:

For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where –

(a)    a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which –

(i)                  exists,

(ii)                existed but no longer exists,

(iii)               may exist in the future, or

(iv)               is imputed to the person concerned.

Disability is one of the recognised discriminatory grounds and it is accepted that the complainant is a person with a disability.

The complainant stated that she was required to work night shifts and in her submission named 4 staff on the switchboard as comparators. In evidence the complainant accepted that some of those named worked night shifts also and was not in a position to specify reasons as to why some staff worked and some did not.

The complainant further alleged that she was not allowed to make inputs into her roster in the same manner as other members of the switchboard staff. No details of specific comparators were put forward in this regard.   The respondent, for their part, said that no member of staff had an input into their roster in the manner suggested but that employees were facilitated with changes if possible.   No specific complaints had been received by management from the complainant in this regard.

Section 85A of the Employment Equality Acts, 1998 – 2015, sets out the burden of proof that applies to claims of discrimination and has been clarified in particular by the Labour Court. It requires the complainant to establish, in the first instance, facts upon which he or she can rely in asserting that he / she suffered discriminatory treatment on the grounds specified. The type or range of facts which may be relied upon by a complainant vary from case to case. They must, however, be established 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to this rule.

The test for applying that provision has been set out by the Labour Court in a number of decisions.   As recently set out by the Court in Offaly Personal Assistant Services Ltd. V McNamee (EDA1841) “that test requires the Complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which he bears, his case cannot succeed.”

The evidence put forward by the complainant in relation to the salaries of comparators, night-shift working and rosters does not in my view raise an inference of discrimination on the grounds of disability such as is sufficient to shift the burden of proving compliance with the Act to the respondent.

Complaint No. CA-00010658-001:

Having carefully considered all the evidence and submissions before me I make the following findings:

I find that the element of the complaint of discrimination in relation to redeployment to be out of time in accordance with Section 77(5) of the Act.

I find that the element of the complaint of discrimination in relation to the failure to regularise the complainant’s terms and conditions has two parts to it. In relation to the complaint of failure to furnish the complainant with a statement of her terms and conditions of employment that was appropriate to her position in the Switchboard Department, I find this to be out of time in accordance with Section 77(5) of the Act.   In relation to the complaint that the complainant was on a lesser salary than the comparators, I find that the evidence before me is insufficient to support a prima facie case for discrimination on the ground of disability.

I find also that the complainant has not made out a prima facie case of discrimination on the ground of disability in relation to those elements of her complaint concerning night-shift working or input into rosters.

The complaint therefore fails.