ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024107
Parties:
| Complainant | Respondent |
Anonymised Parties | A Radiographer | A Health Service Provider |
Representatives | Richard Grogan & Associates, Solicitors |
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Complaints:
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-00030486-001 | 23/08/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00030486-002 | 23/08/2019 |
Date of Adjudication Hearing: 18/02/2020
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
A number of respondents had been named in the complaint and listed for hearing at the same time. It was agreed that the correct respondent is named in this complaint ADJ 24107, subject to an amendment specifying the particular area of the respondent’s activity and the complaints against respondents listed in ADJs 23882, 23887 and 23892 were withdrawn. |
Summary of Complainant’s Case:
The complaints arise under the Employment Equality Acts on the gender, family status and disability grounds and under the Maternity Protection Act. The family status ground was withdrawn at the hearing.
The complaint under the disability ground related to the failure of the respondent to provide reasonable accommodation to the complainant.
The complainant commenced employment with the respondent in 2007. She began working in its Planning Department in 2013 and on October 31st of that year suffered a workplace accident.
From then, and up until her return from a second period of maternity leave, she continued to work in that department, although she was not required to operate the machinery that caused her accident.
Her second period of maternity leave began in July 2018 and she was due to return to work on May 7th, 2019.
She was requested to attend a meeting with her line manager on that day; May 7th and was told that she could not remain in the role she had left and had been in for the previous six years. There was another issue about her working a three-day week, although in fact she worked a four-day week and there was also an issue related to annual leave.
She says she was told that she would be transferred to a different department and to desk duties but that this would be for a limited period of seven months only, following which if a suitable position could not be found for her, she would have to either transfer to another location, which did not suit her, or else retire on health grounds.
She stated that she would remain on a four-day week and opt to remain in her current location but was told that this would not be possible.
The subsequent note of the meeting sent to her did not accurately reflect what was said at the meeting as there was no reference to the transfer away from her current location or the possibility of early retirement.
Since returning from maternity leave she has been moved and feels that this is part of a manoeuvre to force her to quit her job.
The work she has been allocated is at a lower level and this represents a re-grading and less favourable treatment contrary to the Employment Equality Acts on the grounds outlined above (as amended) and also a breach of the Maternity Protection Act. The gender ground has been held to include discrimination based on pregnancy and specifically where a woman is less favourably treated in accessing employment or the conditions of her employment in any way related to the pregnancy. |
Summary of Respondent’s Case:
The respondent rejects the complaints and says there was no discrimination and that no prima facie case has been established under the Employment Equality Acts.
Further, following her most recent maternity leave the complainant returned to the same location and to the same role as she left, and was facilitated with restrictive duties that took account of the disability arising from her earlier injury, and based on advice from the respondent’s Occupational Health service.
Those in the complainant’s grade do not have a permanent, specific assigned role out of the several that are required within their overall responsibility as radiographers. Likewise, they are not assigned to a specific location. Staff are expected to rotate and especially as service needs arise areas.
Flexibility is a feature of the service and evidence was submitted of the pattern of rotation in relation to eight of the complainant’s co-workers showing various periods of assignment to different locations.
On the complainant’s return from the injury-related absence in December 2013 she was deemed not fit to work in patient areas and was assigned to desk work.
This restriction was lifted in 2014.
She went on maternity leave on October 2015 and was due to return in July 2016 when she would have been rotated from the position she had been in prior to her maternity leave.
Onn her return she advised her manager that she could not face a return to the treatment units; the proposed assignment. On the basis of medical advice that she was suffering from PTSD the proposed rotation did not proceed.
However, the Occupational Health physician advised that following treatment for her condition she would be fit for assignment anywhere other than the treatment units.
Prior to her second period of maternity leave she had a discussion with her manager in April 2018 at which it was agreed she would not be moved before the commencement of her leave, but the manager stated her hope that the complainant could work on the units on her return. The rationale for this was to facilitate rotation of her co-workers.
On her return, and before staring work she had a meeting with her manager (that on May 7th referred to above).
This was to discuss the complainant ‘s request to return on the basis of a three-day week.
She was told she could be accommodated in the Treatment Units for a limited period of seven months, but that if she was working a four-day week she could be placed in the Planning section.
A meeting took place on October 29th, 2019 as part of the consideration of a grievance submitted by the complainant and a decision issued on this on November 7th recommending, among other things further discussions between the parties.
This further discussion took place on November 28th, 2019 and the issue of rotation was discussed.
The matter was then referred to the WRC, despite the fact that her grievance had been heard and was being processed and had already been the subject of certain commitments given to her by her line manager.
Therefore, there has been no breach of the Maternity Protection Act as the complainant returned to her position following maternity leave; that is to the same position and on the same terms, to the work she had done previously and subject only to the requirement that she rotate, which was a general requirement that fell on all its employees in the grade.
Section 27 (1) of the Act also provides for the possibility of a return to work to ‘suitable alternative work’, although the respondent does not rely on this as the requirement of section 26 have been met.
No discrimination under any of the protected grounds stated has taken place, and the complainant has not discharged the burden of proof to establish a prima facie case. |
Findings and Conclusions:
I turn first to that question raised at the end of the respondent’s submission of whether the complainant has established a prima facie case.
The standard required to establish a prima facie case is relatively low. It is not the same as having to establish that the complaint is likely to succeed; merely that facts have been presented that are of sufficient significance to raise a presumption of discrimination.
A prima facie case establishes three things;
That the complainant is covered by the relevant discriminatory grounds, There was specific treatment by the respondent, The treatment was less favourable that treatment that was or would have been afforded to another person (a comparator) in similar circumstances.
There must be facts of ‘sufficient significance’ to raise a presumption of discrimination.
It is not sufficient to simply be a member of a protected group to render acts discriminatory, if for example no comparator exists or can be inferred, or the acts are transparently attributable to a non-discriminatory cause.
In her submission the complainant stated that she ‘has shown an inference of discrimination’ and this is on the gender, disability grounds (the family status ground having been withdrawn).
Central to any complaint of discrimination is the principle of ‘less favourable treatment’.
As far as can be discerned this can only relate to two things; first the complainant’s duties on her return and secondly the proposal to have her rotate. The same facts ground the complaint under the Maternity Protection Act.
Comments made about her early retirement were, in my view and on the basis of the evidence at the hearing taken out of context and exaggerated, and in any event not acted upon. Indeed, she complained about issues she says were raised during that conversation not appearing in the subsequent note when this was surely to her advantage, as it suggested there were no longer formally being considered (whatever their previous status).
The complainant submitted a list of duties which she says could be done by a ‘student’ and not part of the ‘primary duties of the job’ and this seems to ground her claim that she was re-graded. Her written submission stated;
‘The work she has been allocated is at a lower level and this represents a re-grading and less favourable treatment contrary to the Employment Equality Acts on the grounds outlined above and also a breach of the Maternity Protection Act’.
‘Re-grading’ has a clear and specific meaning in the workplace and its application to the facts of the complainant’s case here is mere hyperbole and has no basis in fact. Whatever other grievance she may have she has not been re-graded, by any definition of that word.
If the complainant had meant that her duties were ‘diminished’ she should have said so, but she alleged re-grading so that is the basis on which it will be decided.
Again, noting that this claim relates to her complaint under both statutes, even if there had been some diminution in the tasks she was assigned her contract of employment was unaffected so there was no breach of Section 26 (1) (c), and the tasks, according to her line manager were within the range of those normally performed by her colleagues.
The respondent disputes that there was any diminution and says her duties were no less valuable than the duties performed by her professional colleagues.
These same issues became the subject of the later workplace grievance, it seems in September 2019.
The report of the meeting on October 29th contains an account by the complainant’s trade union official setting out precisely the case in the same terms as she has made here following the grievance she submitted. (She had referred these complaints to the WRC some weeks earlier on August 23rd.)
While it is not relevant to a determination of these complaints it is hard to resist the feeling that the internal process represented a better basis for securing actual solutions to the complainant’s grievance, and mutually acceptable outcomes in relation to her future working arrangements.
There was nothing in the submission about where these discussions went subsequently, although there is some implied criticism in the respondent’s submission that she continued with her complaint to the WRC despite her grievance being under active consideration by the respondent. It seems the most likely route to an eventual resolution of the issues.
I must deal with the rotation issue, which seems to me to be at the heart of the matter.
I accept as a matter of fact, based on the respondent’s evidence, that there is a practise of rotation in the department.
It is true that for a number of reasons very particular to the complainant (her injury and subsequent accommodation of her disability, her absence on maternity leave) it had not been applied to her but there is no doubt that it is operated by the respondent, and that the complainant falls within its jurisdiction, so to speak.
It could not be said that the respondent in any way acquiesced in not applying it to the complainant.
The complainant was first asked to rotate in 2015 but this was deferred, and she was asked again on her return to work in 2018, on the basis of reduced duties to take account of the reasonable accommodation of her disability.
It is clear that there were some difficulties, as outlined to her by her manager at the meeting on May 7th, 2018 but these all appear to be well within the sphere of normal workplace deployment issues and nothing that could be said to have crystallised into a breach of the Employment Equality Acts as a direct result of that conversation.
For those reasons, it is very difficult to discern any act of less favourable treatment here, and I find that the test to establish a prima facie case has not been met. There is no fact set out in her complaint from which an inference of discrimination may be drawn, or which supports a charge of ‘less favourable treatment’.
Likewise, in the context of her rights under the Maternity Protection Act she returned to the same job she held before she left and on precisely the same terms as defined in Section 26 (1) (a), (b) and (c).
Therefore, neither complaint succeeds; in the case of CA-00030486-001 because she has not made out a prima facie case and in the case of CA-00030486-002 because it is not well founded.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the reasons set out above I find in respect of Complaint CA-00030486-001 that the complainant was not discriminated against, and in respect of Complaint CA-00030486-002 I find that it is not well founded. |
Dated: 2nd September 2020
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Discrimination, Maternity Protection |