Complainant

Respondent

Parties

Caitriona Ryan

Brothers Of Charity Services Ireland

Representatives

  Daniel Whitworth

Robin Mc Kenna IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00045248-001

17/07/2021

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

CA-00045248-002

17/07/2021

The Complainant is employed as a Social Care Worker and commenced maternity leave in February 2021. The Complainant worked five sleepovers a month for a number of years prior to the maternity leave. On notifying her employer that she was pregnant the Complainant was identified as a high risk of Covid and was instructed to work from home and was paid her standard hours per week but was not offered or paid for sleepovers and weekend shifts. The Complainant maintained she was entitled to these payments as per her contract of employment and that she was discriminated against by not being paid for these sleepovers and premium hours due to being on maternity leave. The Respondent denied they were obliged to pay the sleepovers or premiums either by the contract of employment and per the Department of Health Circular 064/2020 as the Complainant was a Public Servant and covered by the circular and the Respondent was a Section 38 Employer and they and the Employee were covered by the Circular which covered high risk staff during Covid.

The Complainant alleged she had been discriminated against on the grounds of her gender.

The Complainant alleged her employer discriminated against her by reducing her wages (to include her subsequent maternity leave entitlements) on the grounds of her pregnancy. The Complainant sought compensation and reimbursement of the unlawful deductions made from her salary.

The Complainant found out she was 6 weeks pregnant in February of 2021 and immediately notified her team leader directly on the 22/02/21. The Complainant received notification via a telephone call on the 22/02/21 from her regional services manager that under no circumstances was she to return to work until she was reviewed by the Brothers of Charity Occupational Health Department. It was recommended by the Brothers of Charity Occupational Health doctor that the Complainant work from home. While the Complainant was happy to continue to work her contractual hours, she was no longer permitted to do so.

The employer notified the Complainant on the 24/02/21 via email that her sleep over pay (as well as her premium pay- Sunday rate, Saturday rate and unsociable hours etc.) would be deducted from her wage as her employer was no longer able to facilitate a safe environment for her to carry out her duties due to her pregnancy.

Her employer advised her pay would be reduced as she would no longer be able to work sleep over shifts, as per the terms of her contract. The Complainant engaged with her manager, team leader and occupational health doctor via email and phone stating her willingness to continue to go to work.

The Complainant also proposed to her employer that if under no circumstances can she return to work then she would be open to any alternative to prevent such a reduction in her pay including working her contractual hours from home (in accordance with occupational health advice) and/or looking at alternative roles on a temporary basis as a substitute for her sleep overs. For her sleep overs alone the Complainant was paid €404 gross a fortnight. The complainant was already facing a reduction in her wage for her premium pay such as unsocial hours in which she worked 5.5 hours a shift, as well as Sunday and Saturday premiums. The Complainant stated her reasonable offers were refused. Her manager advised her via email that her sleep overs do not form a core part of her pay. The Manager also advised that a sleep over is a fixed allowance and therefore only paid where the person actually undertakes the sleep over.

The HSE guideline document ‘Guidance on fitness for work of healthcare workers in the higher risk categories, including pregnant healthcare workers’ provided to the Complainant by her employer at the timerecommends identifying alternative tasks/roles for the employee in a higher risk category who are not deemed medically fit to return to work. Although an alternative role and working from home was considered for the Complainant she was not permitted to work her hours as per her contract.

The Complainant expressed to the Respondent how this would have a detrimental financial impact on her recent mortgage application- via emails and phone calls to her manager and the occupational health doctor- (this ultimately resulted in her having to reapply for a mortgage again for a lesser amount) as well as her savings for her baby.

The Complainant expressed the great distress she was feeling at the time to the occupational health doctor over the phone and to her manager. At this point the Complainant was only 6-7 weeks pregnant when her pay was adversely impacted by her employers decision. At the time when she became pregnant she had no knowledge that her work situation would change or that she would have to work from home resulting in a pay decrease in her wage. The Complainant stated her reasonable offers were refused and her pay, as per the terms of her contract, was reduced without her consent.

The Complainant stated reason that she couldn’t work her contracted hours was due to the fact that her employer failed to provide a safe working environment during her pregnancy and failed to make reasonable accommodation for her whiles she was pregnant. The Complainant offered to work her contracted hours from home, in accordance with Occupational Health Advice, so as to maintain her salary as per the terms of her contract but that offer was refused.  This amounted to pregnancy related discrimination which equates to discrimination on grounds of gender- accordingly the Complainant alleged her employers actions were both grossly unfair and discriminatory.

It is the Complainants understanding that maternity leave pay correlates to earnings made in the time directly before going on maternity leave. She queried this and received no response to this query and her maternity leave pay was based on 52 hours a fortnight and not on her contracted hours and possible overtime that she would have accrued if she wasn’t working from home. Her maternity leave pay was not representative of the wage/hours she usually earn/work.

The Complainant alleged that her contract states that will be required to work up to 5 sleep overs a fortnight. The Complainant stated that the reason her contract was changed from 78 hours to only 52 hours a fortnight was to accommodate her being able to do 5 sleep overs and therefore the sleepover were clearly considered a key element of her employment terms from the outset. The Complainant stated that she had been doing 5 sleep overs a fortnight from the beginning of her contract which was over 4 years ago at the time of this grievance.

The Complainant advised that the reduction in pay caused he great difficulty with a mortgage application and caused her great stress and anxiety during her pregnancy and ultimately resulted in her having to apply a second time for a mortgage of a lesser amount resulting in her having to try and subsidise for this shortfall.

The Complainant put forward a formal grievance to her employer regarding the fact that her sleep overs had been discounted from her basic pay which in her view amounted to a unilateral amendment to the terms and conditions of her employment to which she did not consent. The grievance was heard but resulted in no change to her new work situation at the time or any type of resolution offered to me by her employer.

The Complainant set out her loss from 24/02/21 to the start of her maternity leave which commenced on the 30/09/2021 which amounted to approximately 11500 Euros.

The Complainant quoted the case law in Dekker v Stichting Vormingscentrum voor Jong Volwassenen (ECJ 177/88), stating that discriminatory acts related to pregnancy are directly discriminatory on the gender ground and that a pregnant woman cannot be compared to either a sick man or a non-pregnant woman.The Court found that since pregnancy is a uniquely female condition, where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive (76/207/EEC) even though there is no male comparator.

The Respondent is classified as a Section 38 organisation. Section 38 (1) of the Health Act 2004 states: “The Executive may, subject to its available resources and any directions issued by the Minister under section 10, enter, on such terms and conditions as it considers appropriate, into an arrangement with a person for the provision of a health or personal social service by that person on behalf of the Executive.”

Chapter 4 of the Health Service Executive Code of Governance is titled ‘Arrangements for the Delivery of Health and Personal Social Services through Hospital Groups, Community Healthcare Organisations and Non-statutory Service Providers’. Part 4.3, Section 38 and 39 Agencies, states “Section 38 Agencies are limited to 23 non acute agencies and 16 voluntary acute hospitals currently within the HSE Employment Control Framework.” Brothers of Charity Services Ireland is a Section 38 agency and within the HSE Employment Control Framework.

 Circular 11/2013 from the Department of Health and Children was issued on 27 September 2013 and is titled “Compliance with Health Sector Pay Policy”. In this document it states “It is noted that the standard Service Agreement between the Section 38 providers and the HSE requires that remuneration in Section 38 bodies conforms to public sector pay norms. Attention is drawn to the following provisions in particular; 2 Section 3.2 (c)(v): Providers shall not pay nor subsidise salaries, expenses or other perquisites which exceed those normally paid within the public sector.” The above is reiterated in the introduction to the Health Sector Consolidated Salary Scales, where it states (compliance with health sector pay policy): “It is noted that the standard Service Arrangement between the Section 38 providers and the HSE requires that remuneration in Section 38 bodies conforms to public sector pay norms.” Circular 138/2000 states, regarding sleepovers “Sleeping in time to be a continuous period of 8 hours between 8pm and 8am and outside the normal 39 hours duty. Staff in receipt of such payment should be deemed to be on call and the payment should only apply to staff specifically requested to sleep in for duty purposes.” The HSE’s website also clarifies the entitlement to the sleepover allowance “If you work in a residential setting that provides care on a 24-hour, 7- day-per-week basis, your job may require you to carry out sleepover duty. A sleepover is when you remain in work for a continuous period of 8 hours or more between 11 pm and 8 am.” Not only is Brothers of Charity Services Ireland obliged to conform to paying the rates of pay in accordance with the consolidated pay scales for the health sector, a requirement it has always complied with, the Service is prohibited from paying any employee more than they are entitled to receive. Similarly, the Service is clearly prohibited from paying the sleepover allowance when an employee is not sleeping in and on call (within the house).

 The Complainant was issued with a job description at the time of her appointment to the role of permanent part time Social Care Worker. In this job description it states, under Remuneration “All new entrants to the Public Service will start at the first point of this scale. For non new entrants consolidated skills are as defined by the Department of Finance Guidance Document dated 21st December 2010 and any subsequent clarification.”

In the Complainant’s contract of employment, at clause 22 – Nominated Health Agencies Superannuation Scheme, it states  “You will be covered by the terms and conditions of the Nominated Health Agencies Superannuation Scheme. You will be required, as a condition of your employment, to contribute pro rata to the Nominated Health Agencies Superannuation Scheme upon taking up the appointment. If you are retiring, please write to your services manager to inform them of the date at least 4 months in advance of your planned retirement date. This is to ensure that the application for your pension benefits can be processed and that authorisation from the HSE for the payment of the benefits will be available to ensure payment will be made to you as soon as possible after the retirement date.” In the Employee Handbook, and at section 6.6, it states  “Membership of the Single Public Service Pensions Scheme (SPSPS) is obligatory for new entrance or re- entrance after a set period of time. Details of the scheme are available from the Brothers of Charity Services Ireland Pensions Shared Service. Existing members of the NHASS or equivalent, transferring from other employers may retain membership of the scheme and should contact Pensions Shared Services for details in relation to this.” The Nominated Health Agencies Superannuation Scheme is a defined benefit pension scheme and only available to public servants. Being an employee of Brothers of Charity Services Ireland South East Region, the Complainant is, de facto, a public servant.

The Complainant’s contract was signed on 16 November 2016. Section 5, Hours of Duty, states “A 52 working fortnight is involved and flexibility of hours of attendance is required to cover the operational requirements of the Services. You will also be required to work up to a maximum of five sleepovers per fortnight. You may also be required to work at evenings and weekends in accordance with the established work rota, or any revision of this notified to you by the Nagle Services Manager, South Tipperary services.” The only guaranteed hours on offer to the Complainant, per her contract, are 52 hours per fortnight. While a maximum of 5 sleepovers is included in the contract, this is not guaranteed and, contractually, she could be offered no sleepovers. The same applies to weekend work. She has no contractual entitlement to such premium hours. While working from home, the Complainant worked, and was paid for, 52 basic hours per fortnight. She did not work weekends, nor did she work sleepovers. This contractual entitlement of 52 hours is also what she was paid while on maternity leave and what she would be paid if she was on sick leave.

 Circular 8/98 from the Department of Health and Children relates to maternity leave, states, at section 5 “A woman in full-time or regular part time employment who is on maternity leave will receive her full normal pay, less any amount attributable to overtime, night work, shift work, working unsocial hours, standby or on-call fees.” While the language at the start of this circular is antiquated, it states that this applies to “Chief Officer, Each Mental Handicap and Specialist Agency”. More recently such circulars are addressed to “Each CEO/Each HR Manager Section 38 Agencies”. All employees going on maternity leave within Brothers of Charity Services Ireland South East Region receive maternity pay in accordance with the above.

Brothers of Charity Services Ireland South East Region has an Employee Handbook. The current version was issued, by email, to all staff in November 2019.  Chapter 3 of the Employee Handbook relates to Employment Conditions. In its introduction it states “In the event of a dispute regarding the contents of this Handbook, the relevant BOC National Policy or collective agreement, or legislation on which the particular provision is based will be the definitive source of reference and its provisions will take precedence.”  In the Complainants contract of employment, signed on 16 November 2016 it states at clause 21 - Agreement: “Your terms and conditions may be revised in accordance with the agreements reached between the union representing your grade and the Brothers of Charity Services.” Circular 064/2020 is a collective agreement between the HSE and health sector unions and was agreed between those parties at the WRC. The Respondent argued that, in accordance with clause 21 of the Complainants contract of employment as well as the Employee Handbook, this circular, as with all circulars, applies directly to the Complainant. This circular specifically relates to the payment of premium payments to staff on sick leave due to Covid-19. The document clearly states (as previously referenced): “Those employees who are not eligible include (but are not limited to) the following: Employees who are identified as being at very high risk (extremely vulnerable), or cocooning and working from home on a temporary basis due to COVID-19”.

The Complainant was not on leave due to having contracted Covid-19. No facility existed or exists that would allow a person to work from home while maintaining their premiums or other non-basic payments or allowances. To accede to this complaint would be contrary to both this circular as well as Circular 11/2013 “Compliance with Health Sector Pay Policy” referred to above.

Section 3.5 of the Employee Handbook relates to “Leave Entitlements”, including Maternity Leave. In this section, and relating to Health and Safety Leave, it states: 7 “If a risk is identified and it is not practicable to take protective or preventative measures, the staff member’s working conditions or working hours must be temporarily adjusted. If this is not possible, the staff must be given suitable alternative work. If no such work is available, the staff may be granted Health and Safety Leave.” A number of regulations within the Safety, Health and Welfare at Work (General Application) Regulations 2007 deal specifically with pregnancy. Regulation 149 states: “Without prejudice to section 19 of the Act, an employer shall— (a) assess any risk to the safety or health of employees and any possible effect on the pregnancy of, or breastfeeding by, employees, resulting from any activity at that employer's place of work likely to involve a risk of exposure to any agent, process or working condition as referred to in Part A of Schedule 8 and, for that purpose determine the— (i) nature, (ii) degree and (iii) duration of any employee's exposure to any agent, process or working condition; (b) take the preventive and protective measures necessary to ensure the safety and health of such employees and avoid any possible effect on such pregnancy or breastfeeding; and 8 (c) without prejudice to paragraph (a) and the relevant statutory provisions relating to chemical agents and to the occupational exposure limits laid down in any relevant approved code of practice— (i) assess any risk to safety or health likely to arise from exposure of a pregnant employee to an agent or working condition listed in Part B of Schedule 8 resulting from any activity at that employer's place of work, (ii) assess any risk to safety or health likely to arise from exposure of an employee who is breastfeeding to an agent or working condition listed in Part C of Schedule 8 resulting from any activity at that employer's place of work and (iii) ensure that any such employee is not required to perform duties for which the assessment reveals such risk.” The risk assessment is catered for in the “Guidance on Fitness for Work of Healthcare Workers in the Higher Risk Categories, including Pregnant Healthcare Workers”.  At section 5.5 it states: “Very High Risk HCWs must work from home and cannot return to the workplace.” At section 5.6 it states: “Pregnant HCWs with the following risk factors may also be defined as Very High Risk and should be referred to OH for assessment:…. ….maternal age 35 or older”. Following a review conducted by the Occupational Health Physician who on 11 March 2021, the Complainant was deemed to be “very high risk”.

 Regulation 150 of the Safety, Health and Welfare at Work (General Application) Regulations 2007 states: “An employer shall— (a) where— (i) the risk assessment carried out under Regulation 149 reveals a risk to an employee's safety or health, or any possible adverse effect on the pregnancy or breastfeeding of an employee, and (ii) it is not practicable to ensure the safety or health of such employee through protective or preventive measures, adjust temporarily the working conditions or the working hours, or both, of the employee concerned so that exposure to such risk is avoided, and (b) in cases in which the adjustment of working conditions or working hours, or both referred to in paragraph (a)— (i) is not technically or objectively feasible, or both, or (ii) cannot reasonably be required on duly substantiated grounds, take the measures necessary to provide the employee concerned with other work which does not present a risk to the safety or health of, or any possible adverse effect on the pregnancy or breastfeeding by, the employee.”

The Complainant was and remains a frontline worker and it was not safe for her to be in the workplace at that time. Regulation 150 allows for an employer to “adjust temporarily the working conditions or the working hours, or both”. At this time, due to Covid-19 and in conjunction with the unions, a national decision was taken to facilitate work from home. This facilitation was extended to The Complainant, i.e. to “adjust temporarily the working conditions.” The Respondent strongly contested that not being paid for weekend premiums and sleepover allowances for not working such shifts was right and proper and in accordance with circular 064/2020, they also further relied on regulation 150 which also allows the employer to “adjust temporarily ….. the working hours”. As a Section 38 agency, the Service must comply with the terms and conditions of employment outlined in HSE and Department of Health and Children circulars.

 The Covid-19 pandemic had a very serious impact on all of us. For those who were deemed to be at very high risk, it was not possible to provide a safe place of work. Under normal circumstances, this would have meant an employee would be placed on health and safety leave. There was no legal obligation for any employer to provide what the public sector provided, the opportunity to work from home. This was above and beyond what was required. As a Section 38 agency, and a public sector employer, Brothers of Charity Services Ireland South East Region facilitated the Complainant to work from home and she was paid her normal basic pay from February to September 2021. This was significantly more than what happened in a large number of private sector companies.

 Brothers of Charity Services Ireland is a Section 38 agency, as defined by the Health Act 2004. As such, all staff employed by the Brothers of Charity services Ireland are, in effect, public servants. They all have the benefit of being paid 11 public sector rates of pay per the consolidated pay scales. All Section 38 agencies are strictly forbidden from breaching these pay scales and the obligations contained therein. This includes Circular 064/2020. Staff have access to the Nominated Health Agencies Superannuation Scheme, a public sector, defined benefit, pension scheme. As per the HSE Code of Governance, Section 38 agencies come in under the HSE Employment Control Framework. Section 38 agencies are obliged to conform with any and all circulars that are issued by the Department of Health and Children and the HSE. The Complainant’s job description clearly demonstrates that she is a public servant when commencing employment with Brothers of Charity Services Ireland South East Region. The Complainant’s contract of employment only guarantees her 52 hours per fortnight. There are no guarantees regarding sleepovers and weekend work that would attract premium payments contained in her contract. The Complainant was paid 52 hours per fortnight while working from home and also while on maternity leave. Sick pay is also treated in a similar manner. Brothers of Charity Services Ireland South East Region adhered to and followed all Public Health, Government and HSE advice during the exceptional circumstances of the Covid -19 pandemic and that included pregnant employees who were vulnerable to cocoon and work from home, despite the fact that The Complainant is a frontline social care worker supporting individuals with intellectual disabilities to lead a normal life, work which cannot be done at home. Not only that, the Service also complied with the Safety, Health and Welfare at Work (General Application) Regulations 2007 regarding risk assessments and protective measures for pregnant employees. To find in favour of this complaint would be contrary to all Public Health, Government and HSE Guidance during the Covid-19 pandemic and would have ramifications across the entire health sector.  The Respondent denied both complaints.

What was common case from the submissions and evidence is:

The Complainant was pregnant during the cognisable period of the complaint.

The Complainant was medically identified from a health and safety perspective as high risk and required to work from home during her pregnancy.

The Complainants normal duties involve working on site and she was paid her normal basic hours to work from home during the period of the complaint.

The Complainant was not asked to work weekends or overtime while at home.

The Complainant did not work weekends on site.

The Complainant was not rostered or permitted by her employer to carry out her sleep over duties due to being categorised as a high risk employee, which was for both her own safety and for others.

The Complainants main case is she was denied these working opportunities and was discriminated against because she was pregnant and that the Respondent was contractually obliged to provide sleepovers by her contract of employment.

Payment of Wages complaint

The core issue for decision so whether the Complainants contract contains a binding term that she must work five sleepovers a fortnight. The Respondent argued that the term “You will also be required to work up to a maximum of five sleepovers” is not an obligation on the Respondent to offer any sleepovers but is an obligation on the Complainant to do up to five sleepovers if offered.  The Complainant argued that the word “will” and not “may” placed an obligation on the Respondent to provide an offer of between 1 and 5 sleepovers a month and as they did not offer her that during her absence due to Covid while on maternity leave the Respondent has breached the Act and she sought compensation accordingly. The Complainant stated she had worked five sleepover a month for the last seven years and had figured on including this income in her mortgage application and it had resulted in a lower mortgage and lower income while she was on maternity leave. While I have every understating of the effect of the reduction in pay for the Complainant, I do not deem that the term ”You will also be required to work up to a maximum of five sleepovers per fortnight”  implies an obligation of the Respondent to provide an offer of any sleepovers and therefore the argument that either one or five sleepovers should be properly paid during the period in question is not valid. Like wise the contract does not confer a right to work evenings or weekends but is a requirement if they are placed on the work rota, which were not put on the rota during the cognisable period and therefore the Complainant has not established that neither evening or weekends were properly payable during the cognisable period.

As stated below,  Circular 064/2020 and the clarification dated February 5th 2021, applies to the Complainant and the requirement to pay the Complainant for any sleepovers and evenings and weekends not worked also ceased by virtue of Circular 064/2020.

Claim under the Equality Act

The Law;

Per section 6(1) of the EEA, discrimination: -

“…shall be taken to occur where

(a)    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) (in this Act referred to as ―discriminatory grounds‖) which-

(i) exists,

(ii) existed but no longer exists;

(iii) may exist in the future, or

(iv)is imputed to the person concerned”

(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are:

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”)…”

Per Section 8 of the Act:

“Discrimination by the employer etc

8 . (1) in relation to – (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, and employer shall not discriminate against an employee…”

Per Section 85A(1):

“Where in any proceedings facts are established by or on behalf of the Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove to the contrary.”

Section 6 (2A) EEA states: -

“Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

I have to decide if the complainant was treated in a discriminatory manner on the grounds of gender and family status, arising from her pregnancy. The Labour Court in Determination No. EDA2230 stated: “In the case of Croc’s Hair and Beauty v. Helen Ahern, ADE/16/58, this Court set out at some length its understanding of the legal protections for pregnant women. It is not necessary to re-state here the full text of the Court’s Determination in that case. It is sufficient to summarise this by referring to the fact that the then ECJ recognised in the Dekker case, to which the Complainant’s submission has referred, that, as pregnancy is a uniquely female condition, any less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender. This principle has been copper fastened by the recognition of equality on gender grounds in the Charter of Fundamental Rights of the European Union which was, in turn, incorporated into the Lisbon Treaty. The jurisprudential principle is set out in Directive 2006/54, which provides that any less favourable treatment of a woman related to pregnancy or to maternity leave constitutes unlawful discrimination.” In drawing on these sources and on relevant case law, the Court in the Croc’s case observed that the special protection afforded to women from the commencement of their pregnancy until the end of their maternity leave is to be regarded as a fundamental right and that where a pregnant woman is treated adversely because of her condition during this period, the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense related to her pregnancy.

The first issue, therefore, for the Adjudicator to consider is if, in fact, there was adverse treatment of the Complainant in contravention of the provisions of the Acts.

Circular 064/2020 which was sent by the on and included the CEOS of all Section 38 employers (including the Respondent) …stated;

“(v) This special arrangement in relation to inclusion of premium payment does not apply to any employee who does not satisfy all the conditions set out in (i) to (iii).

Those employees who are not eligible include (but are not limited to) the following:

Employees who were not required by their manager to work onsite during the 14 days preceding their absence

Employees who are working from home on a temporary basis during COVID19

Employees who are identified as being at very high risk (extremely vulnerable), are cocooning and working from home on a temporary basis due to COVID-19 “.

This agreement (partly cited above) was agreed under the auspices of the WRC by the relevant Trade Unions and the HSE and communicated generally by the circular on November 16th 2020 and set out the arrangements for special leave if an employee qualified for same and also set out the conditions for all employees who were required to work from home and that premium payments for unsocial hours (weekends/Evenings/sleepovers etc) would not be paid to staff not rostered to do so. In addition, on February 5th 2021 a further communication to the Trade Unions generally titled “Covid 19 Pregnant Employees” clearly stated that only basic pay would be paid to any staff required to work from home and that no premium pay would be paid as they are not being required to work those premium hours. The note clearly sets out that “pregnant employees are not being treated differently to any other employees who are required to work from home in this regard”.

Covid 19 brought about many unique and difficult situations for both employees and employers during the crisis. Trade Unions and Section 38 Employers entered into an collective agreement to cover high risk employees, including pregnant women,  to ensure their safety. This agreement involved high risk employees working from home and receiving their basic pay only. High risk employees were not required to work on site, complete weekend overtime or do sleepovers. The Complainant is employed in a Section 38 employment and the rules and conditions of this type of employments apply to her. This included Circular 064/2020.  It is therefore the case that the rules governing a Section 38 employee during Covid applied to the Complainant and applied to all high risk employees and not just to pregnant employees and the Complainant was not discriminated against on the grounds of her pregnancy.

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. I deem the complaint not well founded. (CA-0045248-001)

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. I decide that the Complainant was not discriminated against. (CA-00045248-002)

Discrimination