Complainant

Respondent

Parties

Regina  Dolan Shortt

Health Service Executive

Complainant

Respondent

Anonymised Parties

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Representatives

Damien Tansey Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00041250-001

25/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00041250-002

25/11/2020

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

CA-00041250-003

25/11/2020

The complainant is an employee of the respondent since 2002 and is a Medical Scientist in the Biochemistry Department of Sligo University Hospital. The complainants daughters named S was R were born on 7 October 2007 and 30 March 2011 respectively. In August, the complainant’s husband (who is also employed by the respondent) transferred his parental leave entitlements to the complainant, leading to an increase in the complainant’s said entitlements. The complainant is now entitled to a total of 45.50 weeks (1,515.20 hours) of parental leave. It was submitted that to date, the respondent has delayed/refused the complainant’s requests for parental leave which is in breach of the Employment Equality Acts.

The complainant raised a complaint with the respondent in the context of the refusal of her parental leave. The complainant was the subject of an investigation meeting but no parental leave was granted on foot of same. The complainant states that she is now using her annual leave entitlements in lieu of her parental leave entitlements resulting in a significant reduction of her annual leave entitlements. It was submitted that in or around September 2020, when the complainant sought from the HR Department a copy of her contract of employment, she was told by a member of HR that it had been misplaced during an office relocation and/or destroyed by water damage.

The complainant’s legal representatives wrote to the Head of HR on 8 July 2020 seeking the enforcement of the complainant’s parental leave entitlements, however no response was received from the respondent. The legal representatives sent a further letter to HR on 31 July 2020 and this correspondence was also ignored. Further letters were sent to HR on 5 January 2021 and 15 February 2021 but similarly no response. It is submitted that the complainant had no other option but to lodge a complaint with the WRC.

The complainant submits that she applied for parental leave on 7 January 2019 which was due to commence on 1 May 2019. This was signed off by her Line Manager. On 28 April 2019 (3 days before her parental leave was due to commence) the complainant’s parental leave was postponed due to staff shortages, which was communicated verbally to the complainant by her Line Manager. It was submitted that no written notification of postponement was received which is in breach of HSE guidelines, which provide for such written notice at least four weeks before the commencement of the parental leave. It was submitted that at the material time, the complainant was told her parental leave would only be postponed for one week.

The complainant asserts that on 8 May 2019 (one week later), she re-applied for parental leave which was again, signed off by her Line Manager. The complainant states that it was suggested to her that she start her parental leave in either August 2019 or October 2019, however this did not materialise due to staff shortages. The complainant maintains that from that point onwards, she made repeated enquiries regarding the commencement of her parental leave. It was submitted that due to the delay in the commencement of parental leave, the Head of HR confirmed that the parental leave would be granted past the complainant’s daughter 13th birthday. The complainant made a further application for parental leave on 16 September 2019 (8 months after her initial request) but this was not signed off on by her Line Manager due to staff shortages.

The complainant states that she decided to complain about the manner in which she was being treated in the context of her request for parental leave and she requested the assistance of her SIPTU representative to bring forward a complaint on her behalf. It was submitted that on foot of the complaint, the Laboratory Manager of the Biochemistry Department scheduled an investigation meeting. The Lab Manager was the senior supervisor of the complainant’s Line Manager.  The investigation meeting was held in the Lab manager’s office on 16 January 2020. It was submitted that the complainant’s arguments were very poorly and inappropriately received, and it was indicated to the complainant that she had no grounds for her complaint. The complainant maintains that instead of properly investigating the complaint, the Lab manager proposed that the complainant change her unpaid leave to parental leave. The complainant states that she became distraught that this was the outcome of the investigation meeting that her complaint was not upheld and her request for parental leave was stood over.

The complainant submits that she takes 3.7 hours of unpaid leave on a Wednesday. She states that she was granted unpaid leave when she exhausted her previous parental leave entitlements. However, the complainant’s husband then transferred his parental leave entitlements to her and additional parental leave entitlements were introduced under the Parental Leave (Amendment) Act 2019. This meant that the complainant’s parental leave entitlements were no longer exhausted and she sought to avail of her additional leave entitlements. The complainant submits that on 25 February 2020, the Occupational Health Department recommended that her parental leave be granted but despite this, no parental leave was granted.

The complainant made a further application for parental leave on 10 March 2020 (14 months after her initial request) but this was not signed off by her Line Manager due to staff shortages. On 29 May 2020 (16 months after her initial request for parental leave) the complainant applied again for parental leave. It was submitted that on 3 June 2020, the complainant’s Line Manager confirmed that the complainant’s parental leave was due to commence on 8 June 2020 and that new staff were being recruited to accommodate her parental leave arrangements. It was submitted that despite securing approval to recruit new staff, no staff members were ever recruited. As a result from November 2020, the complainant took annual leave in lieu of parental leave. It was submitted however that no staff recruitment was required to facilitate the annual leave.

It was submitted that on 12 November 2020, the Occupational Health Department recommended (for the second time) that the complainant’s leave be granted, despite this the parental leave was not granted. It was submitted that clearly the respondent does not need staff replacement to facilitate the complainant’s parental leave. It was argued that if this was the case, the respondent would need staff replacement to facilitate the complainant’s annual leave, but it does not. It was submitted that, in addition, in November 2021, a new staff member was recruited by the Biochemistry Department and a pre-existing staff member returned from parental leave to the said Department, however despite additional staffing, the complainant still did not receive her parental leave. Since 12 November 2020, the complainant takes annual leave every Wednesday in lieu of her parental leave which has significantly reduced her annual leave entitlements.

The complainant submits that the respondent breached Sections 11 (1), 11(4) and 11(5) of the 1998 Act by (a) postponing the parental leave on 28 April 2019, 3 days before it was due to commence by (b) postponing the parental leave indefinitely and by (c) postponing the parental leave despite two confirmation documents being already signed by both parties on 9 January 2019 and 8 May 2019.

Employment Equality Claim 

The complainant alleges that she was subjected to unfavourable treatment due to her family status and her need to request parental leave. It was submitted that when the complainant attempted to resolve the issues surrounding her parental leave, she was called to a 2 hour meeting. The complainant states that during the meeting, she was intimidated and undermined by the Lab manager. The complainant asserts that she was repeatedly pressured into changing her unpaid leave to parental leave. The complainant states that she refused to do so as she did not want to risk losing her unpaid leave permanently as her parental leave had still not been granted. The complainant states that she feared that if she raised this issue again, she would be subjected to further unfavourable treatment.

It was submitted that the complainant’s parental leave was postponed/denied on a number of occasions purportedly due to staff shortages. The complainant reiterates that staffing issues were not the problem. If this was the case, new staff would be needed to cover the complainant’s annual leave, but they were not. The complainant submits that, in addition, the complainant was not granted parental leave despite colleagues returning from parental leave and despite new staff recruitment. The complainant submits that clearly staffing issues are not a problem but are being used as a blanket policy to deny the complainant her parental leave. It is submitted that such practices and policies are indirectly discriminatory on the basis of the complainant’s family status.              

The respondent states that the complainant commenced employment as a whole-time Medical Scientist on 21 January 2002. The complainant applied for and was approved to take parental leave in 2008 (1 day per week parental leave each week from 14 May 2008 to 10 February 2010). The respondent states that in 2012, the complainant applied to avail of further parental leave, this application was to avail of ½ day parental leave each Wednesday afternoon. This application was again supported by the respondent (half day each Wednesday was availed of from 19 September 2012 to 6 September 2017).

The respondent submits that in 2017 and when nearing the exhaustion of her then parental leave entitlements, the complainant applied for Flexible Working to temporarily reduce her weekly working hours by 3.7 hours per week and continue half day Wednesday afternoon so as to be supported by the HSE in working the same reduced roster as she had availed of while on parental leave from September 2012. This application was approved by management, in continued support of the complainant’s work/life balance and she commenced on Flexible Hours Contract of 33.3 hours per week on 11 October 2017. The respondent states that there was a parental leave quota of 51.93 hours remaining as at 11 December 2017.

The respondent submits that management have continued to consistently support the complainant’s work/life balance and she continues to work these flexible/temporary reduced contractual hours of 33.3 hours per week to the present day. The respondent states that in August 2018, the complainant’s husband became employed by the respondent. In January 2019, the complainant’s husband applied to his manager to transfer his parental leave quota of 14 weeks X 2 children to his wife. The parental leave quota transfer was completed to the complainant’s record. The respondent states that on 7 January 2019, the complainant submitted an application to avail of this new parental leave quota. The application was proposing the taking of parental leave from 1 May 2019 as

half day or 3.7 hours each Wednesday afternoon and

half day or 3.7 hours each Thursday

The respondent submits that it should be noted that the complainant has not worked Wednesday afternoons since September 2012. The respondent states that the complainant’s application proposed the taking of this parental leave in ½ days/hours and is subject to the agreement of the employer as stated by HSE Circular 017/2019 in accordance with Section 7 of the Parental Leave Acts. The respondent asserts that the complainant’s Line Manager agreed in principle to the application, however it was confirmed that such application would be “subject to securing backfill of absence” as stated in the application form of 7 January 2019.

The respondent states that the Bio-Chemistry Lab has a total staff of 15 whole time equivalents, many of these staff also have requests for parental leave/reduced hours which must also be equitably supported. The respondent submits that in order to deliver safe patient services and upholding its duty of care to patients, staff submitting applications for parental leave/reduced hours in days/hours each week can only be supported by management when backfill recruitment of these hours can be contracted. The respondent maintains that approval of such parental leave in hours is supported by Laboratory Management where possible but as allowed for under the Parental Leave Acts can only be approved with agreement of the employer and where duty of care of patients can be maintained.

The respondent asserts that recruitment to backfill the complainant’s requested parental leave hours commenced but as Grade of Medical Scientist is a specialised Grade and difficult to recruit, no candidate accepted contract of reduced hours. The respondent submits that at end April, the complainant was advised and requested to resubmit her application for parental leave. The respondent states that she resubmitted her parental leave application dated 8 May 2019.

In the revised application, the complainant formally withdrew her request for proposed parental leave ½ day Thursday and resubmitted her application for ½ day parental leave Wednesday afternoons. The respondent states that the complainant requested management to reinstate whole time hours and the application was to take parental leave ½ day Wednesdays from 1 May 2019 (taken as reduced hours from October 2017 replacing her previous parental leave).

The respondent contends that due to the HSE pay bill management in 2019, management were unable to contractually increase hours but the complainant was confirmed as retaining her ½ day Wednesday afternoons to support her work/family commitments as extended to her from October 2017. The respondent states that this concluded the formal re-application by the complainant for parental leave at May 2019. Is states that she remained entitled to apply for parental leave under any of the following;

(i)                  the full amount as one continuous period, or

(ii)                in two separate periods of not less than 6 weeks and not exceeding the maximum amount it total, or

(iii)               in blocks of one or more weeks at a time 

The respondent states that it is aware that the complainant and several other Medical Scientists, remaining preference to take additional rostered hours as parental leave and continue to try and recruit to same. The respondent maintains that despite several recruitment campaigns, posts remained vacant with management unable to agree leave in hours applications due to service provision. The respondent states that in September 2019, the complainant submitted a parental leave application for the period 4 August 2020 to 8 September 2020. Her line manager advised her to defer submission of this application until 2020 or the beginning of the new annual leave year when review of all leave applications could be collectively reviewed. The respondent states that the complainant did not resubmit this application with her Line manager or discuss in 2020  her confirmation regarding taking parental leave from 4 August 2020 to 8 September 2020. Rather the complainant submitted on 7 January 2020, annual leave requests for 12, 13 and 14 August and 26, 27, 28, 31.

The respondent states that in February 2020, the complainant attended the HSE Occupational Health Physician and the Occupational Health report issued on 25 February and recommended that a “work related stress risk assessment” be undertaken and that parental leave of 7.4 hours be considered. The respondent states that it requested the complainant to complete a risk assessment as recommended but the complainant did not agree to undertake same. The respondent states that from February/March 2020, the HSE faced unprecedented challenges during the Covid 19 pandemic. The respondent states that in supporting unscheduled, unprecedented critical patient services, Covid testing, staff safety and well-being, the Laboratory made the decision to immediately restructure work rosters with the option of creating “work teams” who would work opposite each other (to risk manage should one team become ill with Covid), working longer work days, limited work from home and better support staff work/family commitments as school/creche/care facilities closed and all facing additional challenges.

The respondent states that the complainant opted to work on such a team and this change to work rosters commenced March 2020 to June 2020. The respondent maintains that during this time the complainant, like all staff in her area, were extended every support to manage  work/family commitments during the challenges posed by Covid. The respondent submits that in  June 2020, normal rosters resumed and the complainant recommenced her half day on Wednesdays. The respondent states that on 29 May 2020, the complainant submitted a new parental leave application. This new application was requesting proposed parental leave from 1 July 2020 of (a) ½ day/3.7 hours Thursday afternoon (b) ½ day/3.7 hours Wednesday morning the last Wednesday of every month. In this application, the complainant sought HSE confirmation of extension of parental leave based on her daughter S (due to expire on 15/10/2020). The respondent states that due to the extraordinary challenges of Covid and challenges to recruit to the specialised Grade of Medical Laboratory Scientist, HR confirmation was given to extend expiry of parental leave quota for the complainant’s daughter S.

The respondent states that management, in the midst of the Covid crisis and its inability to recruit to several already vacant service posts, unfortunately remained not in a position to agree to staff applications for parental leave in hours. The respondent states that as the country continued in Covid lockdowns 2020-2022, challenges for services, staff absent on Covid leave and the majority of staff with family commitments (with schools/creches/care facilities closed) management continued to support as many staff requests for leave as possible to support service and work/family challenges. The respondent submitted a document which highlights this flexibility and support which was extended to the complainant as evidenced by her leave record during this period (Absence leave record 2018 to February 2022). The respondent states that overseas recruitment to specialised posts is underway but to date has not yielded any suitably qualified candidates. The respondent states that recruitment to vacant posts and then to backfill numerous requests for parental leave in days/hours is required before Service Managers can agree approval to applications.

The respondent states that it has adhered to the terms of the Parental Leave Acts at all times and while it has been unable, to date, to support applications for parental leave in hours for the past three years, this is within the terms of the Acts which states that such requests in days/hours are subject to the agreement of the employer. The respondent states that it is charged with a duty of care to patients and has been additionally challenged since February 2020 to date with Covid 19, HSE cyber attack 2020, critical responsibilities and difficulty recruiting to the specialised grade of Medical Laboratory posts. It states that the complainant’s work/family balance has been consistently supported, to the maximum permissible by management and she has retained approval to ½ day every Wednesday afternoon since 2017 and every flexibility has been extended to her in changing rosters/availing of leave required to support family commitments.

The respondent refutes the allegation that the complainant has not received her parental leave entitlements due for her children S and R. The respondent confirms that the complainant retains the balance of parental leave quota  of 1,383.93 hours and she remains entitled to apply for same as follows;

(iv)               the full amount as one continuous period, or

(v)                 in two separate periods of not less than 6 weeks and not exceeding the maximum amount it total, or

(vi)               in blocks of one or more weeks at a time 

The respondent submits that as evidenced by the points made above and as the employer simply could not agree to new parental leave applications in hours due to critical patient service delivery. The respondent refutes any alleged claim to sick leave quota restoration, loss of earnings or loss of voluntary on-call for stated periods.

Employment Equality Claim

The respondent refutes the allegation of discrimination on grounds of family status. It states that it has at all times upheld the terms of the Acts. It has a professional responsibility to its patients and staff and has extended the complainant every possible flexibility to work/life balance. The respondent asserts that it has established and substantiated that it has adhered to the Parental Leave Acts and has continued to support the complainant’s work/family balance in its continued approval of ½ day each Wednesday and supported every possible request for roster changes and annual leave to support the complainant’s work/family commitments. The respondent states that management have always acted in a fair, equitable and reasonable way to all staff applications for parental leave received but due regard must be given to the employer’s responsibility of duty of care to patients before they can safely agree to reduce contractual staff hours (especially during the Covid pandemic). The respondent states that it will continue efforts to recruit to backfill preferred parental leave hours and is now seeking Overseas Agency assistance and will notify all staff if/when new recruits are secured.            

I have carefully considered all the evidence adduced in the within claim. I note from the testimony given at the hearing that while the complainant’s line manager agreed in principle to the application of 7 January 2019 for parental leave she did confirm that such application would be subject to securing backfill of absence as is stated on the application form of 7 January 2019 and therefore this application did not go through the standard approval mechanism and was not formally approved. I note the respondent’s testimony where it states that a number of staff in the Lab have requests for parental leave/ reduced hours and the respondent has a duty to ensure that these requests are equitably supported

I accept the evidence of the Head of HR where she stated that there were difficulties in trying to recruit to the grade of Medical Scientist as it is a specialised grade and the issue of balancing the various needs in order to deliver safe patient services.

I also note that while the complainant requested to be put back on whole time hours in her application on 1 May 2019 and to take parental leave on half day Wednesday afternoons, management were unable due to the pay bill management in 2019 to accede to this request but the respondent confirmed that the complainant would retain her half day each Wednesday to support the complainant’s work/life balance.

I note that the complainant remains entitled to apply for parental leave under any of the following;

(i)                  the full amount as one continuous period, or

(ii)                in two separate periods of not less than 6 weeks and not exceeding the maximum amount it total, or

(iii)               in blocks of one or more weeks at a time (which is a new provision)

The respondent submits that it is cognisant that the complainant and several other Medical Scientists preference to take additional rostered hours and it has made efforts to recruit staff but posts remained vacant and due to service delivery, management are unable to agree leave in hours applications.

I note from the memo relating to the HSE HR Circular 017/2019 regarding the Parental Leave (Amendment) Act 2019 where it states that an employee may also apply to take parental leave in days or hours but such requests are subject to the agreement of the employer.

I accept the points made by the Head of HR that from February/March 2020, the respondent was faced with unprecedented challenges during the Covid 19 pandemic. I note that the respondent set up “work teams” and supported limited working from home to assist staff with work/family commitments.

I note that in relation to the complainant’s application for parental leave on 29 May 2020 of ((a) half day/3.7 hours Thursday afternoon (b) half day/3.7 hours Wednesday morning the last Wednesday of every month) that due to the Covid crisis and the respondent’s inability to recruit to the vacant service posts, it could not agree to the request, however confirmation was given to the complainant to extend the expiry of the parental leave quota for the complainant’s daughter S.

The respondent provided a document with regard to the complainant’s Absence Leave record from 2018 to February 2022 which highlights the flexibility and support extended to the complainant to support work/ family balance. I note that management are undertaking overseas recruitment in order to fill the special posts but it has not yielded any suitable candidates to date.

Having carefully considered all the evidence heard and factoring in the issues raised i.e. the Covid pandemic, the HSE cyber attack, the difficulties in recruiting the backfilling of specialist posts and the difficulties in acceding to requests for parental leave in hours due to critical patient service delivery, I consider that there is no breach of the Parental Leave Acts. I note that the complainant still retains the balance of her parental leave quota of 1,383 hours and she remains entitled to apply for them 

(i)                  the full amount as one continuous period, or

(ii)                in two separate periods of not less than 6 weeks and not exceeding the maximum amount it total, or

(iii)               in blocks of one or more weeks at a time 

I consider that the complainant’s work/life balance has been supported with regard to her retention of half day every Wednesday afternoon since 2017 and the supports given in respect of the change in rosters and the leave approved which is substantiated in the document entitled Absence Leave record 2018 – February 2022. Accordingly, I find that there is no breach of the Parental Leave Acts.

Employment Equality Claim        

The complainant alleges that she was discriminated against on grounds of her family status. Having carefully considered this complaint, I find that the complainant has not established a prima facie case of discrimination. I am cognisant of the difficulties expressed by the Head of HR in agreeing to reduce contractual staff hours given the vital nature of the service delivery it provides and the challenges posed by the Covid pandemic. I note that the complainant retains her parental quota and can apply in the format above. I am also cognisant of the measures put in place by the respondent during the Covid pandemic when it set up “work teams” and supported limited working from home to assist staff with work/family commitments. Given the totality of the evidence, I am satisfied that the complainant was not discriminated against on grounds of family status contrary to the Employments Equality Acts.

I find that the complainant has not established a breach of the Parental Leave Acts and therefore these complaints are not well-founded.

I find that the complainant has not established a prima facie case of discrimination under the Employment Equality Acts.

Parental leave, Employment Equality Acts