Complainant

Respondent

Parties

Denise  O'Shea

Health Service Executive

Representatives

Emma Davey B.L. instructed by Niall J. Moran Solicitors

William Toomes HSE

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018223-001

29/03/2018

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.  Post hearing submissions were made by the complainant on 7 February 2023.

At the conclusion of the final day of hearing, the complaint sought to have the decision anonymised.  This request was made during closing submissions after all four hearing dates were held in public and on one occasion a journalist was in attendance.  No issue on a public vs private hearing was raised at any stage prior to this point.  The instant case is one of victimisation and the decision of the Labour Court in the previous case was not anonymised. 

The complainant submitted that she was victimised as a result of taking complaints previous complaints regarding her employer to the WRC. She submitted that the victimisation fell under four main headings:

1.       she was stopped from completing her CBT hours,

2.       she was promised family friendly hours which never materialised,

3.       better working conditions were provided to more junior staff, and

4.       she was refused lactation facilities.

The complainant began her postgraduate diploma in CBT in September 2015. The respondent did not fund this as the complainant had previously received funding and was finalising her earlier studies at that time.  She funded the first year of study herself.

The complainant submitted that she met with the Director of Nursing and informed her she was expecting her first child in November 2016 and noted that she wished to finish her diploma and would be seeking funding to do so and a letter of support to allow her to pursue her studies.  The respondent refused to provide funding to the complainant and refused to provide her with a letter of support.

The complainant took a complaint to the WRC as regards the refusal to support her postgraduate diploma.

The complainant submitted that she was appointed to a permanent post on a promotion basis however she denied that she accepted the specific posting made to her. The complainant submitted that the respondent refused to give her family friendly working hours on her return to the workplace following maternity leave.  The complainant submitted that her return to work with not achieved in a family friendly basis and furthermore as she would be required to undertake 100km return journey this was not conducive to breastfeeding her infant child. The complainant sought a 9 – 5 shift as this would enable her to feed her infant son before work and then again after work the complainant submitted that this was unfair on her.

The complainant submitted that she was not allowed to return to her previous position when other staff were allowed to return to their previous positions on promotion. She noted that the rationale given for her assignment was that she was required to work in a priority area but noted that other staff were not forced to do the same.

The complainant submitted that in 2015 she applied for a post acting clinical nurse specialist but was informed that she did not have the appropriate qualification at that time. Upon on her return from maternity leave, she noted that her previous position was now occupied by somebody who did not have the appropriate qualification and wondered why she was not allowed return to that post.  The complainant submitted that it appeared that in her case the assignment of a position to her based on the order of merit in the interview process was not adhered to.

The complainant submitted that in relation to CBT practise hours she was not facilitated in the manner that her colleagues were facilitated. This has resulted in her being unable to complete her studies. She noted that she had letters of support from a consultant psychiatrist to the clinical director seeking that she be facilitated in her efforts to complete her clinical practise hours.

The complainant also submitted that she was not provided with appropriate breast-feeding facilities.

In evidence the complainant stated that she took an acting position up in 2015. She commenced her maternity leave in November 2016 and took a complaint to the WRC which was heard in January 2017. She returned to work in October 2017 post maternity leave and was assigned to work in Tullamore.

The complainant stated that she started her CBT course in September 2015 and was given time to do that and although it was self-funded, it was indicated to her that there was a high chance that she would be funded for her second year. She confirmed that she had received funding for a previous course which was on going and although she was not funded, she was given time off to pursue her studies that time. She noted that she was told that her employer was not able to fund her Year 2 due to her pregnancy.

When her CBT practise hours were refused, she appealed to the matter and was informed that it was a to do with insurance, but she noted that other colleagues from the HSE who were attending her course or facilitated by her employer with their clinical hours. She stated that she was treated differently to other colleagues and classmates. She noted that although one superior gave verbal permission to undertake the hours, he resiled from that position. Arising from this she was forced to stop seeing clients.

In relation to her promotion the complainant stated that she did not apply for a rehabilitation service post and that she sought to be located closer to home. The complainant indicated that sometimes her partner might be away for a week at a time and that the location of her employment did not suit her.

The complainant noted that when she was appointed to the high support hostel, she was not aware of the policy of appointing people to priority areas, and she would not have applied for the position if she had been aware of it. The complainant noted that a named colleague return from maternity leave to her previous position or a similar position in a nine to five role.

The complainant stated that she was placed in her position she believed, as a result of taking a earlier complaint.

She noted that her contract does not mention working in a high priority area and noted that ultimately, she was offered a position closer to home.

Under cross examination she noted that the panel she was on is a national panel and that the next post off the panel was the one that she signed and accepted. It was put to her that the person being used as a comparator took a position that was previously offered to the complainant. She was asked was she aware of the grievance procedure but noted it was going to be a long-drawn-out process.

The complainant noted that she returned from maternity leave in October 2017 and was offered a post that was suitable to her desires in January 2019. She confirmed that parental leave was signed off on but noted that life was being made as hard as possible for her.

As regards the issue of breastfeeding the complainant noted that she sought a 9 - 5 position to facilitate this. The complainant noted that although the procedures regarding breastfeeding state that employers and co-workers should make it as easy as possible for a person to continue breastfeeding and that there was a simple procedure for requesting breaks, no options support or facilities were given.

The complainant stated that there were no facilities on site for her to express and that the only place she was facilitated with was a 10-minute walk away. She stated that the room where she was expected to express was used by service users to and that there was no lockable fridge available to her to store the expressed milk. She said she met with the staff nurse who was not aware that anyone was looking for breast feeding facilities and that all she could offer was a room where service users also used. The complainant stated that colleagues tried to help but that no nobody knew she was coming over to this alternative location.

The complainant noted that on occasion she had no chance to express and had leaked milk onto her clothes and as there were male staff and service users, she felt humiliated. She noted that on location she had to express manually in the car and that this went on as she continued to breastfeed her son until he was 2 1/2 years old when she had to make the decision to wean him from daytime feeds.

The complainant stated that she accepted that a policy had been in place but that she was unaware of the policy and had not been involved in the negotiation of the policy.

On cross examination the complainant confirmed that a colleague was facilitated with a three-day week for breast-feeding, and she confirmed that her son was 11 months old on her return to work she confirmed that she was aware that the employer was only obliged to provide breastfeeding facilities for 26 weeks after the birth of the child

The first witness gave evidence that she worked as a clinical nurse manager and worked as a clinical specialist in CBT. She noted that she retired in December 2020. She stated that she paid for her CBT diploma and was required to have nine clients as part of her clinical practise. She had access to them through the role and didn't hold personal insurance. She confirmed that she was insured through her employer. In terms of supports for her studies she was permitted to go to Belfast for the diploma one day a week and had access to the client she confirmed that there was no CBT service in her area.

As regards the funding for her diploma she noted that her employer requested that she go on the course and her employer paid for the cost of the course. She added that she sought funding for an additional certificate, but it was refused, noting the two colleagues who didn't have to do the certificate course were facilitated with clients.

The witness noted that she was working shift patterns so there was no easy way to access her clinical patients.  Access was during work time but also on her off-time and she was supported in her access to the clients.

The second witness was a psychotherapist in private practise who had no relationship with the employer. However, as a student therapist he was given access to patients. He required 200 hours and was facilitated with 10 to 15 clients. Although not his employer the respondent indemnified him.

Under cross examination he confirmed that he was under the supervision of a senior therapist employed by the respondent and confirmed that he would never have seen clients on his own. He confirmed he never received indemnification nor sought it, and he only took out insurance cover once his training had finished. It was put to him that he was required to have his own insurance in place during his training. He clarified that perhaps he did have insurance cover from a UK firm but confirmed that he was never asked to provide evidence of this.

By way of background the respondent submitted that that the complainant was employed by it since 2006.  In 2015 she was appointed to an acting position as community mental health nurse. In December 2016 she was appointed to the role of clinical nurse manager grade 2 and this was a promotional post. She was employed to fill a vacant position in a 24-hour staffed community residence.

Although promoted in December 2016 the complainant remained on maternity leave until the end of August 2017, she then took annual leave until October. On her return to work she advised management that she was breastfeeding her child and requested an area to express milk. As there were no suitable facilities in her workplace arrangements were made for her to use a neighbouring facility operated by the respondent. It was submitted that the complainant raised an issue about access at weekends and this was facilitated by local management. However, the complainant was not satisfied with the arrangement. Further facilities were made available to the complainant, but she was not satisfied with this arrangement either.

As regards payment for the training course, the respondent submitted that the complainant was already completing a postgraduate course which was being financially supported by the respondent and was informed that the respondent would not be able to financially support a second postgraduate course for the complainant at that time. The complainant enrolled in the course without any further discussion but also without any discussion with her line manager or the director of nursing. She completed the first year of the CBT course of her own volition.

Early the following year the complainant contacted the Nurse Practice Coordinator again requesting funding and support for her second year of the CBT course. She was advised that she still did not meet the terms of the circular covering payment for courses and accordingly did not meet the criteria for support. She also sought to return from her paid maternity leave for several hours per week in order to provide CBT assessments to the respondent’s patient which was a requirement for successful completion of the course.

In relation to this complaint of victimisation, the respondent made submissions in relation to three allegations. The first allegation revolves around the denial of breast-feeding facilities. The respondent noted that its staff guidelines relate to the provision of breastfeeding facilities for mothers within six months of the birth of their child and at all staff are facilitated in this regard. The respondent noted that as it had been more than 10 months since the complainant had her baby its staff guidelines did not apply to her. Despite this fact local management try to facilitate the complainant however none of them proved to her liking.

The respondents admitted that the colleague cited by the complainant as having received breastfeeding facilities on her return from maternity leave denied that this was the case although she was not present as a witness to the hearing.

In terms of the complainants’ submissions regarding family friendly working hours being offered to other employees but not to her the respondent submitted that the role she referred to was initially offered to the complainant as early as 2018 who refused the role which was then offered to a colleague.  The rationale for filling the post in the 24-hour facility was outlined in the submission and the respondents noted that the complainant accepted the position.

In relation to the CBT hours the respondent submitted that the complainant undertook the postgraduate diploma of her own volition despite being advised that the employer would not be supporting her pursuit of the diploma.

The respondent indicated that the complainant was not authorised to complete the postgraduate diploma by her line manager and was never offered support to complete clinical placement hours by the then director of nursing. The respondent submitted that the complainant sought to return from maternity leave to undertake her clinical assessment and the request was denied as she was out on paid maternity leave and the principle of maternity leave is to protect a woman's biological condition and special relationship between her and her child.

The respondents admitted that other staff were allowed to complete their CBT clinical placements, and this is not disputed. However, the distinct difference is that those staff were completing post graduate courses with full support of the HSE from the outset. None of these staff were completing their placements while unpaid maternity leave and none were completing the postgraduate courses as private citizens. The respondent submitted that it has been unable to ascertain the veracity of the claimant's assertion that a former acting director of nursing referred to its position on CBT hours as a witch hunt and accordingly is forced to regard this as hearsay.

The respondent rejects the claim of discrimination and or victimisation noting firstly that there is no onus on them to facilitate breastfeeding breaks beyond six months. Secondly it was clear in its advice to the complainant that they were not providing any support financial or otherwise for her to pursue her CBT placement hours. Thirdly the respondent noted that the complainant was offered an internal transfer to a position in a 9 - 5 service in mid-2018 which she declined.

Anonymisation

Regarding the issue of anonymisation, having regard to the submissions of the parties, to the fact that none of the hearings was held in private, nor requested to be, to the fact that the previous Labour Court decision which named the parties, I am not satisfied that this case constitutes exceptional circumstances such as to warrant the anonymisation of the parties.

Substantive compliant

The complainant took her claim of victimisation on four grounds: that she was stopped from completing her CBT hours, that she was promised family friendly hours which never materialised, that better working conditions were provided to more junior staff and finally that she was refused lactation facilities. The complainant gave evidence in support of her complaint however it became apparent during her testimony and cross examination that the complainant was only giving certain parts of the story but was not providing the full picture. Although I found the complainant somewhat credible in relation to the evidence she was giving, I also found less than credible when the gaps in her testimony became apparent.

As regards being refused lactation facilities, this is not true. The complainant outlined that colleagues were provided with lactation facilities but neglected to mention the policy regarding the provision of lactation facilities for those within six months of the birth of their child. The complainant did not mention any colleague who was in receipt of such facilities.  She confirmed that she was more than 10 months on from the birth of her child when she returned to work and rather than being refused lactation facilities was provided with certain facilities which she did not consider up to standard. As to whether those facilities were up to standard or not it is not for me to say at this point, however, I note that the respondent only undertook to provide facilities to breastfeeding mothers within six months of the birth of their child and as such the complainant was not singled out for less favourable treatment than her colleagues.

As regards being provided with less favourable working conditions than those provided to more junior staff, I note that the complainant mentioned a colleague who was provided with a nine to five working position following maternity leave however she neglected to mention that she had been offered that position prior to her colleague but had turned it down.

As regards being promised family friendly work hours which never materialised, I am not satisfied that the complainant has established that this promise was given.  Furthermore, she was offered a nine to five working position but declined it.

Section 74(1) & (2) of Act define victimisation as follows:

“victimisation” shall be construed in accordance with subsection (2).

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Having regard to the foregoing extract from the Act, and having considered the complainants evidence and submissions, I find that that the complainant has not established adverse treatment and has not linked any perceived adverse treatment to having taken a complaint of discrimination.

As regards being stopped from completing her CBT hours, it was apparent from the submissions and witness testimony that the complainant was not guaranteed CBT hours from the outset and undertook her professional diploma of her own volition. She clarified that she started this diploma while she was already in receipt of funding for another qualification and confirmed that she was told at the outset that the qualification would not be supported.

While the evidence of the complainant regarding furnishing CBT hours to students pursuing courses is less than convincing on its own, the evidence provided by the two witnesses lends credibility to the complainant’s contention that she was treated differently to some colleagues. 

Section 85A of the Act talks about the burden of proof that rests upon a complainant. It is incumbent upon a complainant to establish facts from which discrimination, or in this case victimisation, may be inferred.

85A.—(1) Where in any proceedings facts are established by or on behalf of a 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 the contrary.

Having regard to the foregoing, I am satisfied that in this instance the complainant has established facts from which victimisation may be inferred.  Accordingly, it falls upon the respondent to prove otherwise.

The respondent was not in a position to point to a policy regarding insurance cover and the provision of practice hours and supervision.  The impression given is that it appears to operate the provision of such a facility on an ad-hoc basis.  This renders the provision of this facility open to inconsistent implementation.

In this case I find that the complainant has established facts from which victimisation may be inferred, this has not been rebutted by the respondent and accordingly I find that this aspect of the case is well founded.

Having regard to the inconsistent nature of the provision of facilities for staff to be provided with clinical practice hours, I consider that compensation of €2500 is just and equitable in all the circumstances of this case.

Having regard to all the written and oral evidence presented in relation to this case, my decision is that the complainant was victimised, and I award €2500 in compensation in respect of the victimisation established.

Employment Equality – victimisation – adverse treatment not linked to taking an earlier complaint – well founded – award of compensation.