Complainant

Respondent

Parties

Tracey  Sage-Gallagher

NUA Healthcare

Representatives

  In person

 IBEC

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-00048392-001

30/01/2022

The complainant is employed by the respondent since 20th August 2020 in a permanent capacity. The complaint relates to alleged discrimination on the gender, family status grounds and “other”. The alleged discrimination relating to “other” concerns the complainant’s alleged treatment by the HR Department from July 2021. The complaint also relates to the fact that the complainant has not been notified of vacancies and promotional opportunities while absent and has had access to her emails and pay slips removed during her absence.

Both parties furnished written submissions at the adjudication hearing and gave oral evidence in relation to the complaint. Further information was requested post hearing and was received on 19th January 2023.

The complainant outlined her complaints by way of written submission, evidence by affirmation and with the assistance of Mr Francis Watters, HR Adviser.

The complainant stated that she was initially employed as an assistant support worker in August 2020 and was subsequently promoted to Team Leader in December 2020. The complainant stated that she undertook her duties by way of supporting different service users on days and nights shifts in respect of their care requirements. Due to difficulties with a particular service user and potential risks to her, the complainant was assigned solely to provide care to one particular service user who did not pose any risk to the complainant. The complainant outlined that this particular service user received 2:1 care, meaning that the complainant would never be alone in the provision of his care and given his particular health condition he posed no physical threats to her.

The complainant stated that, once she notified her employer of her pregnancy in July 2021, a risk assessment was carried out in relation to her role and she was informed that she could not remain involved in the provision of care to the service user in question. The complainant stated that she had no involvement in the risk assessment which is contrary to the relevant policy.

The complainant stated that as a result of the risk assessment, there were two options outlined to her, one was to transfer to the “Atrium” in Naas in an administrative role supporting the HR Department, the other option of being placed on Health and Safety Leave was perceived by the complainant as a threat if she did not accept the role in Naas.

The complainant outlined a number of issues she experienced when she accepted the alternative role in Naas. The complainant previously worked three 12-hour shifts in her substantive role but in the new role she would be working 5 days per week. Three of the days involved a round trip of in excess of 100 kilometres per day and the remaining two days she would be working from home. The alternative role in Naas resulted in additional childcare costs, additional travel time and costs and significant disruption the complainant’s home life. In addition, the complainant would not be paid her shift lead allowance and her contractual hours of work would be reduced from 169 to 162.5 per month resulting in a further loss of earnings.

The complainant stated that she also had other concerns in relation to the alternative role in Naas on the basis that certain administrative tasks were new to her and while she considered herself capable of the tasks, she felt she would require some time to be able to operate at the expected speed in the new role. The complainant further outlined issues she experienced when she began working in Naas such as feelings of being humiliated, undermined and bullied by a colleague in respect of how she was carrying out her new role. The complainant outlined that she experienced severed bouts of depression, anxiety and stress after a week in the new position.

The complainant submitted a grievance to the respondent on 26th July 2021 in respect of the flawed risk assessment relating to her removal from her initial role, the bullying and harassment she felt she experienced in the new role in Naas and the initial threat by management that if she didn’t accept the temporary role in Naas, there were no other available alternatives and she would be placed on Health and Safety Leave and would receive a payment of only €204 per week.

The complainant was ultimately dissatisfied with the grievance investigation report and sought a further investigation by an external investigator. Around the same time, the complainant attended her GP and was certified as being unfit for work and remained absent on certified sick leave until the commencement of her maternity leave and has returned to certified sick leave following the end of her maternity leave. At the date of the adjudication hearing the complainant remained absent from work due to workplace stress and stated that she continues to receive support in respect of her mental health in relation to her experiences from July 2021 onwards.

Assignment to Naas

In respect of the assignment to Naas, the complainant’s evidence was that, as she was assigned there for health and safety reasons, she had been told that there was not much expected of her and her first day went well. On the second day the complainant stated that she was mostly looking for files and tasks of that nature. On the third day the complaint said she was asked to complete two sets of minutes and felt panicked and pressurised. The complainant said she could do the minutes but not as quickly as expected as she did no typing in her previous role and she was not a fast typist. On the fourth day, the complainant stated that a member of management queried if she was capable of carrying out the role as someone that could perform at a certain level was required. The complainant stated that she was then told about a third location and that her performance was the reason she was being transferred there. The complainant stated that she attended work on the 5th day and was very upset, bothered and confused about the week and wanted to speak with management but no-one called her prior to her leaving that day. The complainant subsequently went to her GP and was certified as suffering from work related stress.

Evidence of Mr Barry Gallagher

The complainant’s husband gave evidence by affirmation. The witness described how he has watched his wife “go through hell” in respect of this issue and how he has sat at her hospital bedside and held her while she cried. The witness stated that the employer had a blatant disregard for his wife’s health and how it has upset her so much that she continues to receive support for her mental health to date. The witness also outlined that his family’s leisure time together was impacted as a result of the upset and stress caused to the complainant.

Closing submissions

The complainant’s representative/assistant reiterated the position that the complainant has satisfied the burden of proof in establishing a “prima facie” case of discrimination on the basis of her pregnancy and the less favourable treatment she was subjected to by the employer. The complainant also contends that all of the issues she experienced stemmed from the flawed risk assessment which should not have been acted upon and which resulted in the discriminatory treatment. The complainant contends her complaint should succeed and she is seeking compensation in relation to same.

In respect of the complainant’s employment, the respondent confirmed that the complainant commenced in employment as an assistant support worker in August 2020, however the respondent is unaware of the grade of “shift lead.” The respondent stated that the complainant may have been in receipt of a “shift lead” payment but remains employed in her role as an assistant support worker.

The respondent contends that it acted at all times to ensure the health, wellbeing and safety of the complainant and her unborn baby. The respondent stated that the alternative role in Naas was offered to the complainant as she had indicated that she wished to remain working throughout her pregnancy. In the absence of any other alternatives, the only other option was for the complainant to be placed on Health and Safety leave. The respondent stated that this was not meant as a threat but rather as clarifying the available options to the complainant.

In respect of the initial risk assessment, the respondent accepts that it was carried out by a staff member who was not qualified to carry out a risk assessment and that it had been carried out without any input from the complainant. Nothwithstanding this error, the respondent stated that a second risk assessment was carried out in conjunction with the complainant on 4th August 2021 and if a medical certificate from a GP was submitted confirming that the complainant could return to working directly with service users, the respondent would have facilitated the complainant’s return. The respondent stated that the medical certificate was not furnished, and the complainant has not returned to work since.

In respect of the grievance report that issued, the grievances were not upheld in respect of the issue surrounding the “threat” of placing the complainant on health and safety leave and the grievance did not uphold the allegations of bullying in respect of the short number of days that the complainant attended work in Naas. The issue of the risk assessment was upheld, and the respondent contends that this was rectified by a second risk assessment conducted with the complainant on 4th August 2021. 

In respect of the complainant’s allegations of discrimination, the respondent contends that the complainant has not satisfied the burden of proof as she is required to do in accordance with Section 85A of the Employment Equality Acts, 1998 – 2015 and in those circumstances the burden of proof does not shift to the respondent and the complaint must fail.

Evidence of Ms E Knox

Ms Eithne Knox, the respondent HR Manager gave evidence by affirmation. The witness confirmed that the complainant was employed on a full-time basis as an Assistant Support Worker since 20th August 2020. The witness stated that there was no change to the complainant’s substantive grade but that pay increases were applied to her in July 2021 and January 2022 and a further €1 per hour premium rate was added while carrying out the shift lead role in assisted living.

In respect of the notification of the complainant’s pregnancy, the witness confirmed the process and the need for a risk assessment to protect mother and baby. The witness stated that she became involved on 14th July 2021 and spoke with the complainant about the possibility of reassignment, which was difficult at the time due to covid measures and due to no available roles on the “front-line” at that time. The witness stated that she phoned the complainant after returning from leave to see how she was getting on in the role in Naas. The witness stated that they spoke about completing the minutes and how this was an important part of the role and would be seen as a priority. The witness stated that she never said the complainant was unable to perform in the role or that her performance was at issue. The witness stated that she had said that typing was crucial in that role.

The witness then confirmed that a third role became available on 21st July 2021 in “Newhall” which was a front-line role and was closer to the complainant’s home which would be more suitable to her. The complainant could have started as soon as 2nd August 2021 in that role. The witness stated that the complainant was given paid leave to meet the Manager of the prospective new location and was due to start there on 9th August 2021. The witness confirmed that the third role was not removed or “pulled” as suggested by the complainant but did not happen as a result of the complainant’s medical certification of being unfit for work.

Closing submissions

The respondent representative reiterated its position that it acted in compliance with legislative requirements in respect of the complainant’s pregnancy and the requirement to carry out a risk assessment. The respondent further stated that is acted in good faith at all times in its efforts to source alternative employment for the complainant in circumstances where she wanted to remain at work. In respect of the discrimination complaints, the respondent concluded by stating that it had no case to answer, and that the complaint should fail.

The complainant contends that she was discriminated against on the gender and family status grounds when she notified her employer that she was pregnant in July 2021 and a flawed risk assessment resulted in her being removed from her substantive role in the organisation.

The Applicable Law

Section 6 of the Employment Equality Act, 1998 at relevant part states as follows:

6. (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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 the "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,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions 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”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”)

(2A) 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.

Burden of Proof

Section 85(A) of the Employment Equality Act, 1998 provides as follows:

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the F156[Director General of the Workplace Relations Commission] under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Conclusions

I have given careful consideration to the submissions and evidence of the parties. The complainant is claiming that she was discriminated against on the basis of family status, gender and “other” in respect of her working conditions having notified her employer of her pregnancy in July 2021.

It is not disputed that the initial risk assessment was flawed and was carried out by a member of staff who was not qualified to undertake the task nor is it disputed that the risk assessment was carried out without any input from the complainant.

Resulting from the risk assessment, the complainant was removed from her role providing care to a service user, who by the complainant’s own admission did not pose any risk to her health as a pregnant woman. The complainant was clear in her evidence that the service user in question was a quadriplegic, and she was trained in all aspects of his care as well as the fact that the care was provided on a 2:1 basis meaning the service user had two carers at all times.

The complainant reluctantly accepted the transfer to Naas on the basis of her belief that the only other alternative was that she would be placed on Health and Safety Leave resulting in a significant loss of earnings as she would receive only €204 per week. The complainant’s evidence was that this was outlined to her repeatedly by management and she felt she had no option but to accept the transfer.

There were a number of changes to the complainant’s terms and conditions of employment as a result of the transfer; loss of shift lead payment, reduction in monthly hours of work, additional travel time, additional travel expenses, additional childcare costs as well as significant disruption to the complainant and her family. All of these issues arose as a result of the flawed risk assessment and obviously caused great distress to the complainant.

In respect of the experience of the complainant in the short time she was assigned to the Naas location, it is not my role to comment on the interactions that led to the complainant lodging a grievance. However, I note that by the time the opportunity arose for the complainant to return to work on receipt of a medical certificate following the second risk assessment on 4th August 2021, she was certified as being unfit for work as a result of workplace stress arising from her perception of how she had been treated by the respondent from mid July 2021 onwards.

In respect of the HR Manager’s evidence, I note the good will of the respondent and the efforts that were made to facilitate the complainant to remain at work and then to source a second alternative location for the complainant when the role in Naas was not working out. It is unfortunate that the second alternative location in Newhall did not materialise but by the time that offer came about, the complainant had been certified unfit to work due to workplace stress and at the date of the adjudication hearing, the complainant remains absent due to workplace stress. I note that the complainant has been deemed fit to engage with management with a view to resolving her outstanding issues which will assist in her return to the workplace.

In all of the circumstance of the complainant I am satisfied that, as a result of the flawed risk assessment and subsequent disruption and losses, the complainant was subjected to less favourable treatment and was thereby discriminated against on the grounds of gender and family status. On that basis the complaint is well founded.

The element of the complaint relating to discrimination in respect of “other” is also well founded in part. The complainant was not notified of vacancies/promotional opportunities while absent on sick leave and maternity leave which in my view should be a standard practice. In respect of the restricted email access, I accept the respondent’s position that this occurred as a security measure concerning an employee who was on long term absence. The reasons for the lack of access to payslips was not clarified by the respondent but having considered the matter I find on balance that this was not a discriminatory act towards the complainant.

Having considered the submissions and evidence of both parties to this complaint, I find that the complaint is well founded. The respondent is directed to pay the complainant €10,000 in compensation.

The respondent is further directed to ensure that a policy is in place to ensure that staff who are absent from work are notified of promotional opportunities and vacancies that arise during the periods of absence.

Discrimination, burden of proof, less favourable treatment