Complainant

Respondent

Parties

ÁIne Murray

University Hospital Limerick

Complainant

Respondent

Anonymised Parties

Representatives

Cian O'Dowd Irish Medical Organisation

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-00016259-001

11/12/2017

The Complainant is a Medical Doctor and submitted a claim to the WRC on December 11th 2017 relating to a claim of discrimination relating to events when she was employed by the Respondent between March 13th 2017 and March 20th 2017. The six month time limit for submitting a claim under the Act elapsed on September 20th 2017 and the 12 month time limit allowing an extension for reasonable cause elapsed on March 19th 2018. Therefore the claim was submitted approximately 10 months after the alleged incidents. The Act requires a Complainant to submit a claim within six months of the alleged infringement and the Act allows an Adjudicator grant an extension of time for up to a further six months if the Complainant can show reasonable cause for the delay in submitting the claim within the prescribed time limit of six months. The Respondent alleged that there was no reasonable cause for the Complainant to delay submitting her claim within the allowed timeframe and stated the claim was out of time and therefore the Adjudicator had no jurisdiction to hear the case. The Complainant put forward her reasons for the delay and I will deal with this preliminary issue first in this decision. Should I find there was no reasonable cause then I must determine the claim is out of time and if I find that there was reasonable cause I will proceed to deal with the substantive matter of the allegation. The claim is mainly for alleged discrimination due to pregnancy related (Family status) issues.

Preliminary issue

The Complainant was a Locum to the Respondent, employed through an Agency, and worked frequently for the Respondent at certain intervals for short period so time. She worked on 25 occasions in 2016 and approximately 4 in 2017.

The Complainant went on premature labour on July 19th 2017 and her son was not medically fit for discharge from Hospital until September 28th 2017, more than   a week after the six month time frame elapsed and her child required significant medical care for the early portion of his life.

The Complainant was also concerned about her application to join a more permanent role would be affected if she submitted a claim to the WRC.

Substantive issue

The Complainant has been discriminated against because of her gender and family status.

The Complainants contract was cancelled three days early and was denied future work in the ED department which pays a higher rate than some other work she was offered.

The Complainant was informed by the Locum Agency that there was ED work but she should not apply for it.

On 20th March at 8.10 am she informed her Consultant (working for the Respondent) that she had to go for a scan for assessment of her pregnancy. This was the first occasion she revealed her pregnancy. She considered this to be an urgent appointment and the response of the Consultant was “terse”. On return to work she agreed with another Consultant to extend her shift to make up the hours.

The Complainant was then informed by the Agency that the hospital ED Consultant wanted anyone but her going forward.

Being upset she told the Agency she would not work the next day. Later that day another Consultant told her the contract as being cancelled.

Another Consultant told her the contract as being cancelled due to her sick leave on March 14th, her request for a rota change on March 15th and her attendance at an appointment on March 20th.

We submit that the reason her contract was cancelled was due to her pregnancy, a decision made in the immediate aftermath of the Complainants attendance at a medical appointment.

The Complainant seeks compensation for the discriminatory act.

Preliminary issue

The Complainant stated in an email to the WRC that the reason for her delay was she was fearful in would jeopardise her application for the BST course commencing July 10th 2017. The Respondent does not accept that argument as her place on the course was confirmed by April 2017.

The Complainant had formed an intent to submit a claim prior to July 2017 through her statement in her email dated January 23rd 2018.

The Complainant had three months to submit a claim between the alleged incidents and the time of her admission to hospital. The hospital is sympathetic to the Complainants difficult labour but she had ample time to submit the claim prior to this.

The Complainant sent a comprehensive email to the Director of HR on August 24th 2017 outlining issues she had and this email on very briefly made mention of the allegations. The main part of the email made reference to other claims which the Complainant subsequently withdrew and the Complainant would have been within the allowed time frame if she had contacted the WRC at that time which she did not.

The Complainant was formally a member of staff in July 2017 and failed to utilise any of the internal grievance procedures or consult her Line Manger, HR or her Union Representaive for advice

The Respondent was not her formal employer at the time of the alleged incidents.

The Complainant is a highly qualified professional and well aware of the Respondents procedures through her periods of engagement with the Respondent.

The delay prejudiced the Respondent in conducting an investigation into the allegations.

Substantive issue

The Complainant was not an employee of the Respondent but of a Locum Agency.

The burden of proof is with the Complainant to establish that there was been discrimination against her.

The Complainant has not produced sufficient evidence to justify her claim.

The Complainant was facilitated, like any other employee, on March 15th to attend her medical appointment.

The formal notification of the Complainants pregnancy is disputed.

The Complainant has not referred to a comparator to whom she was treated differently and as such has no case.

The decision to source someone other than the Complainant to do work in the ED was not related to the Complainants pregnancy or family status but due to other reasons.

On the week of March 13 to 17 when the Complainant was due to work in the ED she called in sick on the 14th, on the 15th she indicated she had a childcare issue during the course of her shift and she was accommodated within the hours she was scheduled to work. In relation to the appointment on the 20th   March it is the Respondents understanding is that this was a prescheduled appointment and the Complainant did not notify the Respondent until that morning that she had to attend an appointment giving the Respondent no time to arrange a cover for the Complainant.

The Complainant was an SHO and in her absence there was no SHO present.

The Complainant asserts in her own submission that she did not want and did not notify the Respondent before the date of her appointment about her pregnancy therefore the Respondent was unaware of her pregnancy.

The Complainant stated she did not think the Consultant was approachable yet the same Consultant had facilitated her previous time off due to her childcare commitment.

The mere fact of mentioning an appointment with a gynaecologist is not adequate or sufficient evidence of notifying a pregnancy.

The Respondent   would not ask an Agency employee for details of their pregnancy.

The Complainants engagement with the ED set out a pattern of unreliability over a short and concentrated time period in a busy department, where the Complainant was filling critical medical gaps.

It is not reasonable to assume the Respondent discriminated against the Complainant when it engaged her five times between March 21st and July 7th when she commenced a full time BST contract with the Respondent.

The Respondent absolutely refutes that it discriminated against the Complainant and the decisions to source an alternative Locum cover was not related to the Complainants pregnancy/Gender or family status.

Preliminary issue.

Having considered all the submissions regarding the preliminary issue of the complaint being submitted outside the allowed time frame I find that the circumstances of the Complainants pregnancy and the subsequent hospitalisation of her baby for 14 weeks is the key determining factor in my decision to grant reasonable cause for the extension of time to twelve months to allow the substantive claim be dealt with. In so doing I am cognisant of the time between the alleged incident and the onset of the Complainants labour and the fact that her email to the Respondent in August covered many areas and covered the claim only briefly but the fact that the Complainants new born baby was hospitalised for an extensive period in intensive care outweigh all other facts and I grant the extension of time for reasonable cause.

Substantive issue

The Respondent is a correct nominated Respondent under section 2.3.c. of the Act.

The main core of the Complainants case is that she was discriminated on family grounds due to being pregnant.

The first issue for the Adjudicator is whether the Complainant has established facts from which it may be presumed that there has been discrimination in relation to her.

With regard to the substantive issue the Complainants main case is that she was not allowed work again with a particular Consultant in the ED after working with her for one week. In that week prior to and in the week the Complainant was due to work with the ED Consultant, the Complainant was out of work for one day, tried to change shifts another day and gave no notice of a pre planned appointment on another day. The Complainant did not give any specific evidence to substantiate the claim that the Consultant was acting in a discriminatory manner to the Complainant because she was pregnant.

The case is made against the Respondent and it is in this context that the claim must be considered.

The Complainant was hired on a full time contract (which she subsequently left) after the alleged incident of discrimination.

The Complainant was under an obligation, due to the situation of her work, to either inform the Locum Agency or the Respondent in advance of her medical appointment prior to commencing work on that date. She did not do so and only notified the Respondent on the day of the appointment. She was facilitated by the Respondent to go to the medical appointment, despite only given very short notice.

The Complainant did not site any comparator to justify her claim..

The Complainant was unavailable or refused to work on anther date in the week involved.

The Complainant was offered and took up 5 different locum appointments with the Respondent between the date of the alleged incident and starting her BST contract mid july.

The Complainant was offered and commenced a full time position by the Respondent after the date of the alleged incident.

It is well settled law that mere assertion cannot be elevated to the status of evidence. The Complainants submission included a number of “hearsay” comments to support her claim.

Overall, having considered the submissions of the parties and the evidence of the two main participants to the dispute, I find that the Complainant has failed to discharge the initial burden of proof which rest upon her to establish primary facts from which discrimination can be inferred and the decision to not re-engage the Complainant in the ED was made out of operational needs rather than discriminatory needs and the claim fails accordingly.

Discrimination