ADJ-00021089

Complainant

Respondent

Parties

Breda  Enright

Health Service ExecutiveNational Ambulance Service

Representatives

GerardKennedySIPTU

 A HR Manager

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-00027731-001

15/04/2019

The Complainant is a Medical Technician and alleges discrimination in a selection process for promotion on the grounds of her gender.

In January 2018 the Complainant went on emergency medical leave due to pregnancy related medical conditions.  The Complainant has been employed by the Respondent for 17 years with an exemplary record. She commenced maternity leave in March 2018. She had been re-numerated on an acting basis for 4 years as Lead Technician. She was one of a number nationally who held acting positions. The Respondent had committed to the creation of panels through internal competition for the purposes of filling positions as they were being fulfilled by some staff on an unpaid basis.  Prior to the Complainants absence she had applied for the Lead Post on a permanent basis but the scheduled interview was cancelled due to storm Ophelia. On receiving a new interview date the Complainant informed the Agency (hereinafter called Agency X) acting for the Respondent that due to her medical conditions related to her pregnancy that she could not attend. Her pregnancy related condition was confirmed by her Consultant and Agency X confirmed they would reschedule the interview. The Complainant subsequently followed up with Agency X and they confirmed the establishment of an Interview Panel for the posts. The Complainant was subsequently advised by a male colleague that the interview process was complete and he was taking up the post of Lead. The Complainants Union wrote to the Respondent objecting to the filling of the post as the Complainant had not been interviewed and the Respondnet stated it was unaware of the situation. The Respondent stated it would contact Agency x.

In November the Complainant was invited for interview. The Complainant was surprised to find a Representative of the Respondent at the interview. She was placed at a number on the National Panel (not identified in this decision deliberately for confidentiality).  The Complainant was upset a this process and lodged an internal grievance through the grievance procedure. Her grievances were never properly addressed internally.  The Complainant alleges she was discriminated against by the Respondent through the withholding of her post allowance at the commencement of her maternity leave despite she had a contractual entitlement to same. The Complainant alleges she was treated differently to a male colleague while on maternity leave than as if she was not on leave in contravention of the Act. While there was no subsequent economic loss as the issue has been rectified by the Respondent, the Respondent was still in breach of the Act and this principle has been echoed by the Labour Court where it has awarded compensation in similar circumstances.

The Complainat applied for promotion, was scheduled for interview and due to a storm the interviews of candidates, which was scheduled over five days, were postponed.  A new date was set with the Complainant, and agreed to, but then the Complainant advised she could not attend due to maternity related reasons. The Complainant was advised to contact Agency X when she was fit to attend for interview and it was clear she would be given an interview when she was able to do so.

The filling of the Panel continued and went live in April 2018 but no appointment was made until 2019. In July 2018 the Complainant emailed Agency X to say she was not fit for interview. The Complainant was advised due to issues with the make up of the Interview Board her interview may not take place till September 2018. The Complainant was interviewed on November 19^th 2018. Posts could not be offered until this process was complete.  The Complainant was successful in her interview and she was added to the Panel in November 2018 and first expressions of interest were issued to successful candidates. No posts were filled until 2019.

No one was offered a post before the Complainant and she now occupies the promotional position without any loss of income.

No discrimination has taken place nor has the Complainant been treated any less favourably than her colleagues.  The Respondent accepts that the interview process did suffer challenges due to a storm and Interview Panel difficulties.

An issue of underpayment was sorted to the Complainants benefit and she suffered no loss in this respect also.

The relevant Section in the Act which the Complainant alleges had been breached is as follows;

6.1 “For the purposes of this Act, discrimination shall be taken to occur where on any of the rounds in subsection 2 in this Act (referred to as the discriminatory grounds) one person is treated les favourably than another is, has or would be treated.”  Part of Section 2 states a discriminatory ground is based on gender “ That one is a woman and the other is a man. “

This claim was heard over two Hearings. The first on August 26^th 2019 and the second on November 6^th 2019. The Respondent attended the first Hearing but not the second Hearing. The main reason for holding the second Hearing was to give the opportunity to the Respondent to engage with Agency X as to the reasons and facts of the interview delay for the Complainant and particularly the lack of communication with the  Complainant while she was on maternity leave regarding the interviews and the process of filling the promotional Posts (and especially a male colleague of the Complainants before the Complainant had been interviewed). The Adjudicator was particularly keen to hear an explanation of the recruitment process from Agency X, who the Respondent had committed to contact and that they would make available to the reconvened Hearing.  Agency X also did not attend the second Hearing. So, in the absence of this further explanation from Agency X or the Respondent, I will make the decision on this claim with the information presented to me.  It should also be noted that the Complainant emphasised at the second Hearing the extreme stress this process had on her at a time when she should have been enjoying her maternity leave. The Complainant also stated that she had worked up to the last day of a previous maternity leave, against the advice of her doctor,  to assist her colleagues who were short handed.

The claim is brought for a breach of the Employment Equality Act 1998-2015. The Complainants core case was that no panel should have been created while she was on maternity leave, that there was a delay in her interview appointment due to the Complainant being on maternity leave and that an allowance was stopped while she was on Maternity Leave. At the Hearing it became clear that the Complainant took up the promotional post at the earliest opportunity, that she suffered no economic loss compared to the male colleague and her allowance issue, which was part of a wider issue and not specific to the Complainant was also resolved and back pay paid. In essence the claim can be summarised as the Complainant hearing from a male colleague that he was being promoted before the Complainant had been interviewed and that her interview was delayed solely due to the Complainant being on maternity leave.   This naturally and understandably upset the Complainant and caused her distress as to where she stood in the process and opportunity for promotion to her chosen Location.  However, none of the evidence presented points to any deliberate action of discrimination or inequality by the Respondent or Agency X in this case. The Respondents arguments regarding the storm and delays in the interview process were credible. But it does appear that the Complainants application had “slipped through the administrative cracks”  while she was out on Maternity Leave. This caused the Complainant undue upset especially when she found that a male colleague had been “appointed” arising from the interview process.  Also the Complainant, in the absence of any explanation from Agency X, seems to have had to do most of the follow up to get her interview rather than Agency X or the Respondent. For clarity the Adjudicator is not stating that a promotional process should stop while a person is on maternity leave but that a persons rights should be protected while on maternity leave. Therefore, I find that there was an unintended technical breach of the Act in that the Complainant was treated less favourably than a male colleague while she was on maternity leave in that the communication and interview process (or a more clear explanation/agreement with the Complainant of where things stood with her application while she was on maternity leave)  was not on a par with her male equivalents who were at work. However, the amount of compensation has to reflect the fact that this is a technical rather than deliberate breach of the Act, that the Complainant was appointed to the Post at the earliest available opportunity as her male colleague and has suffered no loss of income as a result of the technical breach. I award the Complainant 3,000 Euros compensation for breach of section 6 of the Act.