ADJ-00015253

Complainant

Respondent

Parties

Regina Foley

Lansdowne Care Limited trading as Home Instead Senior Care.

Complainant

Respondent

Anonymised Parties

Regina Foley

Lansdowne Care Limited trading as Home Instead Senior Care.

Representatives

Gaffney Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00019789-001

14/06/2018

The following is a summary of the Complainant’s case.

The Complainant said that she is originally from Kenya and was the only black Caregiver working in and around her community while she was working with the Respondent. The Complainant claims that she started working as a Caregiver for the Respondent on 1 July 2017. She said that on 26 January 2018, she made a complaint about a fellow Caregiver who she claims was knowingly ignoring legislated care practices, while caring for vulnerable, elderly clients in their home, therefore continually putting them and herself at a risk of injury. She said that she communicated this officially to the Respondent, after which, she felt the discrimination, that she was already facing and had already brought to the Respondent’s attention prior to this, amplified. The Complainant said that she was bullied by means of working hours that she was allocated, and then she claims that she was victimised. She said that her hours were reduced. She was immediately withdrawn from seeing her clients. She said that all her communications with the Respondent after that were largely ignored. She said that the Respondent’s actions directly affected her finances and created such an anxious and stressful period of months that she said she felt she had no option but to resign on 27 April 2018. The Complainant said that she was the only one who was being treated in this fashion despite her bringing up regular issues to the ‘office staff’, the Care Manager, and finally, the owner. On 19 January 2018 she said she informed the Care Manager that there was a client using the wrong aid for her care needs, namely, wrong sized hoist sling and commode. On 6 February 2018, the Care Manager informed her that she had been withdrawn from the client that she suggested needed the correct assistant in her Care plan. This significantly reduced the Complainant’s total weekday hours from 18 hours to 11.5 hours. The Complainant said that she was not offered any alternative work to make up for her loss, the Respondent was hiring new Caregivers in and around her geographical area at the time. This meant that during weekdays, instead of 9 calls a day, they had been reduced to 6 calls a day. This was after she brought to the Respondent’s attention that she was concerned about the welfare of a vulnerable, elderly Client because the Caregiver paired with her was not following safety procedures. She said that this was crucial because they were working with the wrong aids (a hoist sling and commode that were too small for comfort for the elderly client). She said that she was not the first, or the only one to bring this to their attention, yet she was the only one who was pulled out of calls with that Caregiver. On 12 February 2018, having worked on three occasions on her own on what she deemed was a double-assist job, where two Caregivers are needed at another vulnerable client’s home, she informed the Care Manager that she was no longer willing to keep putting vulnerable elderly clients and herself at a risk of injury. On 21 February 2018, the Care Manager informed her that she had been withdrawn from another client – the one she had been assisting on her own because the other Caregiver, the same person as she had reported before, was not appearing for work. This, again, significantly decreased her total weekday hours from 11.5 hours to 5 hours. Again, she claims that she was not offered any alternative work despite other Caregivers being introduced to new clients and being offered more hours. In the weeks leading up to her resignation, her weekday total hours had been reduced to a total of three hours. The Complainant said that she has always been professional, punctual, and hardworking throughout. The people she worked with, colleagues and clients alike, were - and still are - fond of her. She said that not one complaint was ever made about her work. The Complainant said that the Care Manager withdrew communication with her. She has found it difficult to get references from the Respondent or to get it to sign important documents for her Healthcare Coursework assignments. She said that she was employed by the Respondent from July 2017 until 27 April 2018 and said that during those times it became apparent that she was not getting equal treatment as other Caregivers, who she claims were all Irish Caucasians, in similar positions and doing similar work. She said that since her induction, she said that she wanted to work weekdays only. She said that she kept reiterating this to the office staff, but despite this, she was scheduled for weekends. She claims that if she was not available for the weekend, her hours during the week would significantly be decreased forcing her into working weekends to make up hours. She said that it became a running theme, that if she did not do as the office staff wished, her hours would be reduced without notice. The Complainant said that this brought on anxiety and a fear of losing hours and her steady source of income. The Complainant said that she learnt that when her calls would be taken away from her schedule, they would be given to her colleagues who were already complaining of being too busy with calls. They would then question as to why she was not being afforded the same and she said that they thought she was the one purposely cancelling calls so that they would be loaded up with work. She said that this put her in a very awkward position and would cause a lot of tension during double-assist shifts. The Complainant said that she did ask several times why she was being treated differently and the answers were varied and did not make sense. She said that they ranged from, 'we do not have any work now,' but the next day she said that she would learn that a Caregiver had been offered work. Other times she was told that more work is only available during weekends. She said that she accepted that excuse except that she was only offered those shifts when the other Caregivers, originally offered the work, could not do the calls - for whatever reason. She said that in hindsight, her asking about why she was being discriminated against made her position worse. The Complainant claims that on numerous occasions, calls were taken off her schedule to accommodate other Caregivers who were already working more than forty-hour weeks. On other occasions Caregivers were being paid double for jobs within her area, that she was never even offered to do at the normal rate. She said that there were times where her calls were taken away from her without notice and given to other Caregivers (who were already working well over triple of her 5- hour week- Monday to Friday), and when those Caregivers could not make those calls, she would be called to cover them. After working for the Respondent for approximately eight months, four more Caregivers were hired to work in the geographical area, and had continuously busy schedules, whilst her weekday schedule dramatically decreased from an average of 9 calls a day to of 2 calls a day. She said since March, because of reduced hours it made no financial sense to continue and decided to look for another job to supplement her income. She said that she had previously asked the Care Manager for a reference but did not received it.

The following is a summary of the Respondent’s evidence. The Respondent provides house hold assistance and care for the elderly. The Respondent said that the Complainant signed a contract of employment with it when she commenced work as a Caregiver on 1 July 2017. The Respondent gave a detailed explanation of the working model that it operates. It noted that its work is very much dependant on client requirements and referrals and it’s not a business that can simply come up with work itself. The majority of the work is dependent on a third party dictating its requirements and the vast majority of the work would span evening and weekend work. It accepts that at the time that the Complainant had indicated that she was less inclined or available to work weekends. The Respondent indicated that it is an equal opportunity employer with over 25% of its staff being foreign nationals and although the Complainant claimed to be the “only black Caregiver in her locality”, which is regionally a very small catchment area, the business operates is a substantial employer operating in a larger geographical area and there are a significant number of Caregivers with various ethnic backgrounds including many other Caregivers who are black. The Respondent introduced the Complainant’s signed contract of employment and referred to the clause which read “I understand that because of the business, no amount of work available can be guaranteed…”. The Respondent said that the Complainant was in regular contact with it in relation to availability throughout her employment and it presented in evidence a number of emails outlining when she was not available. The Respondent also said that she was regularly asked, on short notice to fill gaps as they appeared, and unfortunately, she could not usually oblige. The Respondent presented evidence of the exchange of pleasantries between the Complainant and the Respondent’s team at the end of December 2017 and said that this does not suggest that there are any difficulties between the parties. The Respondent points to a number of emails between it and the Complainant, where it had checked her availability, in particular it referenced an email dated 12 January 2018 where she indicated that she is no longer available to do “a call” on Sunday evenings, because of the reduced hours for the call that it was not worth her while. On 19 January she informed the Respondent what she wants and what clients she can commit to work with. On 26 January she raised issues with another Caregiver, and she indicates subsequently that she has a problem working with this person and that she has indicated that she does not want to work alongside this person. The Respondent said that during this time it was trying to manage a schedule where one Caregiver had requested not to work with another and at the same time the Complainant was in regular contact about appointments she could not make, and where other Caregivers were required at short notice to cover. The Respondent highlighted the number of changes requested and unavailability of the Complainant in that period. However, throughout that time it all appears both parties were cordial from the communication exchanged and there were no issues. The Respondent said that on 19 February the Complainant sent an email complaining that her hours were reduced in the “past 3 weeks or so”. The Respondent presented an email exchange with other possible options, for Monday to Friday work. The Complainant was asked to help in her location with a number of calls around that period up to the end of February but unfortunately none suited. The Respondent said that it received a solicitor’s letter on behalf of the Complainant on the 22 March 2018, outlining inter alia that she felt she was being discriminated against. The Respondent said that the Complainant also around this time said she was unable to meet her calls for four days of the following week in April 2018. The Respondent presented evidence of the exchange of correspondence from January to April. The Respondent said that having received the solicitor’s letter on behalf of the Complainant on the 22 March 2018 it met with Mr. A, the owner, on 13 April 2018 and tried to listen and understand her issues and “put them right”. However, she had indicated that she was going to leave. The Respondent contacted her and asked her to reconsider her decision to resign.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

Discrimination

The Relevant Law

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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) ...”. Section 6(2)(h) they are of different race, colour, nationality or ethnic or national origins, (in this Act referred to as “the race ground”). I note the decision in Melbury Developments v Arturs Valpetters [EDA 0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 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 …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”. Having considered the evidence I am satisfied to conclude that the Complainant has not established any facts what so ever to which give rise to the presumption of discrimination on the part of the Respondent. Therefore, I must state that I am satisfied that a prima facie case has not been established by the Complainant and the burden of proof did not shift in the course of the hearing. Section 85A of the Employment Equality Act 1998 has not therefore been invoked. The Complainant has cited other white Irish Caregivers as her comparators, who she deems were treated more favourably. I was informed by the Complainant that her case is in relation to race discrimination and victimisation. The Respondent said that the Complainant has not adduced any evidence to establish how she was treated less favourably due to the characteristics of the Race ground and that there was no victimisation. I have carefully taken note of the sequencing of the events in this case and have studied all of the email exchanges between the parties. I note that there have been much documented communications in particular for the period of months leading up to the Complainant’s last days of work with the Respondent, which I have found to be helpful in this investigation. I have heard evidence from both sides, the Complainant and Mr. A in relation to their perception of what happened. The Complainant claims that she was performing well in her work, she had issues with some of the care plans for her Clients and reported them back to the office, that she believes the reason she was singled out was because of her race. In January, she also reported an issue with a fellow Caregiver she had been paired with and having contacted the Manager and the Owner and having tried to give this Caregiver a second chance she reported that she could not work with her any longer. I note that the Respondent said that the care plans are designed for the Clients by the HSE following their individual assessment.   It also noted that the Complainant did raise concerns about another Caregiver and said that she did not want to work with her any longer. So, it had no choice but to move her from that work. I note the Respondent said that she became less and less available and was not as accommodating to help out when the Respondent required. Whereas others were much more accommodating. I heard that it is the nature of the role, those who tend to always help out more are offered more. Mr. A said he had never met the Complainant and from her name and her emails never knew anything about her ethnic background. He said none of the decisions in relation to her or her hours had anything to do with the colour of her skin. I note from the Complainant’s evidence that things got worse around end of January 2018 and her hours were reduced and no new offers were made. The Respondent produced evidence of the substantial interaction between the parties from that period. All of these seem on the face of it to be courteous and cordial. The Respondent relies on a number of emails, which demonstrate it offering her work, and a number of emails from the Complainant replying that the offers do not suit. The communications from the Complainant appear to be addressed each time, and they appear to be friendly in nature, not of the type that would suggest there is undertone of difficulties. I noted above in Melbury Developments, the Complainant must “establish facts from which discrimination may be inferred... Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.” Having considered the evidence I am satisfied to conclude that the Complainant has not established any facts which give rise to the presumption of discrimination on the part of the Respondent. Therefore, I must state that I am satisfied that a prima facie case has not been established by the Complainant and the burden of proof did not shift to the Respondent from the evidence adduced. Section 85A of the Employment Equality Act 1998 has not therefore been invoked. Therefore, I am satisfied that the complaint brought under section 77 of the Employment Equality Act, 1998 in relation to direct discrimination on the grounds of race fails.

Victimisation

The Relevant Law

Victimisation is defined by Section 74(2) of the Act as follows: -

For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complaint was solely or mainly occasioned by the Complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a) to (c).

In Determination EDA1017, Department of Defence v Barrett, this Court held that in order to make out a claim of victimisation under the Act it must be established that: -

a. The Complainant had taken action of a type referred to at Section 74(2) of the Acts (a protected act),

b. The Complainant was subjected to adverse treatment by the Respondent, and,

c. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

In the case of the Public Appointments Service -v- Kevin Roddy[EDA1019]  the Labour Court held that: “To  be encompassed within the ambit of section 74(2)(b) “proceedings” must come  within the definition as defined by Section 2 under Interpretations where “proceedings” means—(a)  proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and (b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference, but does not include proceedings for an offence under this Act” Under the Act the complainant must prove that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts referred to at Section 74(2) of the Acts.” Therefore, in order to maintain a claim of victimisation within the meaning of the Employment Equality Acts it is necessary that the Complainant demonstrates the connection between her actions in relation to defending her entitlements under the Act and the adverse treatment complained of namely, reduced hours. The Complainant clams that she was also asking why her hours were being reduced and that she was being discriminated, although she did not use that terminology. The Respondent disputes that. I note that the Complainant has noted that things got ‘much worse’ when she started complaining about Clients’ care plans and after reporting her fellow Caregiver’s work ethic. All of this was up to the end of January 2018. I see that the Solicitor’s letter to the Owner is dated 22 March 2018 and this is the first record I have seen where there is mention of Discrimination or the Employment Equality Acts. This I would claim is when there is concrete evidence that the Respondent was on notice of the Complainant’s feelings and possible actions to defend her position. However, the Complainant’s evidence is that the reduced hours happened before this date, and was happening for some time heretofore and particularly, after she reported her fellow Caregiver in January 2018.

As set out in the Department of Defence v Barrett case above, the protected act (as set out under section 74(2) of the Act) is the first stepping stone when evaluating victimisation in the three-step test. Followed by the alleged adverse treatment by the Respondent (reduced hours) and finally linking the adverse treatment, was in reaction to the protected action. Accordingly, I am satisfied that it is clear that from a review of the dates of the events that this cannot be the case in this instance.

Accordingly, the Complainant’s complaint under victimisation fails.

I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that:　

(i)                  the Complainant has failed to establish a prima facie case of direct discrimination on grounds of race in terms of Section 6(2).

(ii)                the Complainant has failed to establish a prima facie case of victimisation in terms of Section 74(2) of the Acts.

　Accordingly, her complaint fails.　

Employment Equality Acts - direct discrimination – race – victimisation - failed to establish a prima facie