EDA2313

1.Appeal of Adjudication Officer's Decision No.ADJ-00029771 CA-00039483-001

This is an appeal on behalf of St John of God Community Services (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00029771, dated 18 May 2022) under the Employment Equality Act 1998 (‘the Act’). The Adjudication Officer decided that Ms Ann Doherty (‘the Complainant’) had been discriminated against on the grounds of her family status by the Respondent and awarded her compensation of €45,000.00 for the effects of discrimination. The Respondent’s Notice of Appeal was received in the Court on 24 June 2022. The Court heard the appeal over two sittings, on 14 December 2022 (in a virtual courtroom) and on 8 February 2023 in Dublin. The Complainant gave sworn evidence as did the following witnesses on behalf of the Respondent: Ms Sinead Carey, Mr Des Balmer, Ms Jeanine Scanlon and Ms Jenny Smyth.

The Factual Matrix

The Complainant commenced working in the area of social care in 2003. She became an employee of the Respondent in 2016. At all times material to the within appeal, the Complainant was employed as an Instructor in the Employment Services division. In this role, the Complainant acted as a job coach to men and women with disabilities, assisting them to gain or maintain employment. This included identifying educational, training and personal supports of assistance to those individuals. It is common case that the Complainant spent the greater part of her working time in the field, visiting places of employment and supporting service users, and the remainder of her time in the office, completing administration tasks and networking with colleagues. Her official work location was at St Raphael’s in Celbridge, Co. Kildare.

The Complainant became aware in February 2020 that she was pregnant with her second child. She attended her GP on 26 February 2020 who advised her to take some time off work. The GP issued a medical certificate confirming that the Complainant was unfit for work due to pregnancy-related illness for the period 26 February 2020 until 4 March 2020. The Complainant submitted the medical certificate to the Human Resources Department. She returned to work on 4 March 2020 and worked her normal days until she commenced a period of pre-booked annual leave on 13 March 2020. (At that time, the Complainant was availing herself of statutory parental leave on Mondays.)

The Complainant was due to return to work on 24 March 2020. The first wave of pandemic-related restrictions was in place at that stage. The Complainant, therefore, contacted her Co-Ordinator, Mr Des Balmer, by telephone on 18 March to discuss what options would be available to her on her return to work the following week. The Complainant advised Mr Balmer that her preference was to continue in her role as an Instructor in the Employment Support service and to do her work from home as she had no childcare support and was also pregnant. Mr Balmer told her that it wasn’t possible to facilitate her request to work from home at that time and that annual leave (other than pre-agreed leave) was not being granted and that, therefore, the only options available to the Complainant, in the circumstances, were to take a period of unpaid leave or to make herself available for redeployment to a residential setting in circumstances where the Respondent was prioritising support for its residential services. The Complainant decided that she could not work in a residential setting due to unavailability of childcare for her child and other reasons. She ruled out taking unpaid leave because she couldn’t afford to go down that route. She, therefore, contacted her GP who provided her with a medical certificate for a period of four weeks on grounds of pregnancy-related ‘stress and low mood’.

Ms Jeanine Scanlon commenced as Supervisor in the Employment Support service on 16 March 2020. In that role she was the Complainant’s immediate line manager. The Complainant contacted Ms Scanlon, whom she hadn’t known previously, and explained to her why she had decided to take sick leave at that time. The Complainant also offered to assist Ms Scanlon in whatever way she could as Ms Scanlon was new to her role and still at the stage of familiarising herself with the files etc. It is common case that the Complainant provided extensive assistance to Ms Scanlon throughout March and April 2020 whilst on certified sick leave.

Throughout the period that the Complainant was absent on certified sick leave, she was hopeful that she would eventually be permitted to work from home when the Respondent was in a position to facilitate this. In or around 10 May 2020, the Complainant was in contact with a male colleague who informed her that he was working from home at that stage using Zoom for online meetings. On 14 May 2020, the Complainant exchanged text messages with Ms Scanlon during the course of which the Complainant said that she had become aware that a number of pregnant colleagues were permitted to work from home. Ms Scanlon replied that she was aware, on the other hand, of two pregnant colleagues who were working in residential settings at that time. The Complainant contacted Mr Balmer by telephone the following day and explained that she had been doing a significant amount of work for Ms Scanlon while on certified sick leave and had therefore concluded that there was work there for her to do and that she could do it perfectly well from home. Mr Balmer again restated that it was not possible to facilitate the Complainant’s request to work from home. The Complainant became very upset and unwell following her conversation with Mr Balmer. She was concerned that the extended sick leave she was availing herself would impact negatively on her future career. She had also formed the view by this time that some of her colleagues – including Ms Scanlon who did not have children – were being treated more favourably than she was as she believed they were permitted to work from home while she wasn’t.

The Complainant and Ms Scanlon spoke by telephone on 19 May 2020. The Complainant explained to Ms Scanlon that her priority at that time was her own health and well-being and looking after her family but that she hoped to be in a position to return to work before her period of maternity leave commenced. Later that day, Ms Scanlon sent a text message to the Complainant suggesting that she speak to her GP about putting ‘something pregnancy covid related’ or ‘cocooning’ on subsequent medical certificates that would allow the Respondent to restore her to full sick-pay. The Complainant discussed this with her GP who advised that if she were to be signed off as cocooning, the Complainant would be unable to return to work for the duration of the pandemic restrictions. The Complainant did not want this as her preference was to return to work as soon as practicable.

The next contact between Ms Scanlon and the Complainant happened on 9 July 2020 when Ms Scanlon enquired as to when the Complainant envisaged being able to return to work. The Complainant said she anticipated doing so on 18 August 2020, at which point her child would have settled back into childcare and the Employment Support service would be resuming following its annual two-week service holiday. Ms Scanlon followed up with the Complainant on 6 August 2020 in relation to her planned return to work and informed her by text that she would be asked to work from a different location until the middle of September. Ms Scanlon didn’t have full details of what was planned for the Complainant and, therefore, suggested she contact Mr Balmer the following day. Mr Balmer was tied up conducting job interviews and was due to commence annual leave that evening so he and the Complainant only managed to communicate via text message on 7 August 2020. Mr Balmer informed the Complainant that she was being redeployed to the Respondent’s facility in Maynooth but that he hoped she could return to Employment Support before commencing her maternity leave. The Complainant was not happy with Mr Balmer’s proposed redeployment as she regarded the Maynooth facility as unsuitable for her as she was at a late stage in her pregnancy and the relocation was to a public-facing, patient handling role. The Complainant had a consultation in the Coombe Hospital on 14 August 2020 at which the consultant signed her off as cocooning. She submitted a medical certificate to that effect to the Respondent and informed Ms Scanlon that she would not be returning to work before her maternity leave commenced.

Ms Scanlon advised that she would amend the Complainant’s status on the Respondent’s systems to cocooning and told her that that should result in the Complainant being restored to ‘full wages’. However, on 27 August 2020, the Complainant noticed that her pay was significantly reduced. She contacted Human Resources about this and was redirected to Ms Jenny Smyth, the Human Resources Officer for the Liffey Region. Ms Smyth advised the Complainant of relevant HSE guidelines in relation to employees cocooning and that the guidelines provided for different levels of cocooning. The Complainant sought further information by email from Ms Smyth on 30 August 2020. Ms Smyth, in response, suggested that she organise a meeting with the Complainant, Mr Balmer and herself. This meeting did not take place as the Complainant declined to attend. She submitted her complaint under the Act to the Workplace Relations Commission on 31 August 2020. She began her maternity leave on 20 October 2020. She resigned from her employment with the Respondent in 2021.

The Complainant’s Evidence

The Complainant gave a detailed account, from her perspective, of the events referred to above and of the effect that they had on her mental health and well-being.

Evidence of Ms Sinead Carey

The witness outlined her role and responsibilities as Programme Manager in Kildare Day Services with the Respondent. She told the Court that in early March 2020 it was anticipated that the Respondent’s day care services would cease because of the pandemic but that its residential services would continue to be operated. She also said that management compiled a database of staff to identify those who were at high risk or who had childcare issues in order to understand who could be redeployed from day care services to provide additional support to maintain the residential services.

The witness gave evidence of when she learned from the Complainant that she was pregnant with her second child. The witness’s recollection of the date they met differs from the Complainant’s, however, it appears to the Court that nothing of relevance to the within appeal turns on this conflict in evidence. The witness said her recollection is that the Complainant was absent on pregnancy-related sick leave, as certified by her GP, from 24 March 2020 onwards; that she was subsequently certified as cocooning by her consultant in the Coombe and then, when referred by the Respondent to Medmark, confirmed as unfit to resume working until after the birth of her child.

The witness’s evidence then returned to the steps taken by the Respondent from 17 March 2020 onwards to identify staff available for redeployment from their normal duties to support the Respondent’s residential services. She said that about 50% of available staff had been so redeployed within the first few weeks following 17 March with some of the remaining staff on standby at home awaiting redeployment while others came into the workplace to undertake deep cleaning duties, complete administrative work or to make contact with non-residential service users. The witness said that the male colleague (‘N’) that the Complainant had referred to in her evidence was in fact redeployed to residential services throughout the first wave of the pandemic although there were shifts when he was not required and during which he, therefore, worked from home. According to the witness, those staff members who were unavailable for redeployment because they had childcare issues were offered unpaid leave only in accordance with HSE guidelines. She also told the Court that some employees combined their childcare responsibilities and work by taking evening or night shifts, or working weekends in residential settings.

Evidence of Mr Des Balmer

The witness was employed as a Co-Ordinator of Services with the Respondent at the material time. He told the Court that he had had a very good working relationship with the Complainant in that capacity but had very little contact with her following the commencement of her pregnancy-related sick leave on 24 March 2020. He told the Court that he remembers having a telephone conversation with the Complainant on or about 18 March 2020 during which he told her that it wasn’t possible to facilitate her request to work from home at that time and that the Respondent could not sanction annual leave (other than pre-booked leave); only unpaid leave could be approved. The witness’s recollection is that the Respondent did not have the infrastructure available to it at that time to support working from home using Zoom, for example. He said that the Respondent’s priority at the time was to redeploy as many staff as possible to be available to support its residential services. According to the witness, the message he conveyed to the Complainant during their telephone call was the same message he had given to many other co-workers who had contacted him.

The witness said that he recalls that the Complainant appeared anxious and upset during their telephone conversation In March and that she told him that she would have to go out on sick leave because of the unavailability of childcare for her first child.

The evidence then moved to a later telephone conversation between the witness and the Complainant in mid-May 2020. The witness said that the Respondent had increased its capacity to support online working by this time. However, his recollection was that he did not request the Complainant to commence working from home as she remained medically certified unfit to work. He also said that he did not believe that he had adopted a hostile approach to the Complainant during their call but that he did remember that the Complainant appeared to be anxious and upset.

The witness said that his next contact with the Complainant was in August 2020 after he had been informed by Ms Jeanine Scanlon that the Complainant intended to return to work following the two-week block closure of the day services. The witness said that he had been interviewing prospective employees all day on the day on which the contact with the Complainant took place. He said he was due to commence his annual leave that evening and didn’t get the chance to telephone the Complainant during the day but sent her a text message late that afternoon. He informed the Complainant in that text that, on her return, she would be temporarily redeployed to the Respondent’s ICE facility in Maynooth. The witness said that it had been decided this was the most suitable option for the Complainant because the facility had been refurbished, there was excellent ventilation there and only a small number of service users present at any one time. In the witness’s opinion, this would have been a very safe environment for the Complainant.

Evidence of Ms Jeanine Scanlon

The witness told the Court that she has worked for the Respondent for over seventeen years and that she began a new role as Supervisor in the Supported Employment service on 16 March 2020. According to the witness, the Complainant offered her assistance from the beginning of her tenure as Supervisor and continued to do so up until 30 April 2020. At that point in time, the witness said that she had been redeployed and was working night shifts in a residential setting. The witness said that she didn’t recall having a specific conversation with Mr Balmer about the assistance she had received from the Complainant but may have made a comment in passing to him about how helpful the Complainant had been to her when first took up her new role.

Evidence of Ms Jenny Smith

The witness told the Court that she had been employed by the Respondent as a Human Resources Officer for the Liffey Valley Service between October 2019 and June 2022. She told the Court that the first contact she had with the Complainant was on 29 August 2020 when the Complainant appeared to become very upset during a telephone conversation initiated by the Complainant to discuss a deduction of €203.00 from her salary. The witness said she advised the Complainant that the Respondent’s Employee Assistance Service was available to her. According to the witness, the Complainant told her that she felt she had been treated unfairly by the Respondent as she had not been offered the opportunity to work from home during the pandemic. The witness also said the Complainant told her that she was pregnant and had had a panic attack. The witness said that she was aware that the Complainant had submitted a medical certificate from the Coombe advising that the Complainant was cocooning. According to the witness, she then had a conversation about the HSE guidelines which provided for different levels of cocooning but that, in her opinion, the Complainant did not fully grasp the significance of this and the implications of the guidelines for the Complainant herself. She, therefore, proposed a meeting be arranged at which the Complainant, Mr Balmer and the witness could discuss the HSE guidelines as they applied to the Complainant. That meeting did not take place.

Discussion and Decision

The Complainant’s case is that she believes that she – as a parent with childcare responsibilities - was treated less favourably by the Respondent than other colleagues following the outbreak of the pandemic in March 2020 because the Respondent denied her the opportunity to do her work as an Instructor in the Supported Employment service from home. The Complainant referred in particular to two colleagues she believes were treated more favourably: Ms Scanlon who had been appointed as her Supervisor with effect from 13 March 2020 and who was not a parent and N, a male colleague and the parent of teenage children. It was the Complainant’s belief that Ms Scanlon and N were both working from home throughout the period comprehended by her complaint.

The consistent and uncontradicted evidence of the Respondent’s witnesses is that the Respondent had taken a decision as early as mid-March 2020 that it would have to prioritise support for its residential services over its day care services. To that end, it reviewed the circumstances of all staff and redeployed available staff, including many with childcare responsibilities, to its residential services. Those with childcare responsibilities who could not make themselves available for redeployment were offered unpaid leave only – paid annual leave was not permitted in accordance with HSE guidelines which the Respondent was subject to. Ms Scanlon’s evidence was that she undertook night shift duties in a residential setting while also continuing to provide support for users of the Supported Employment service as best she could and with some assistance from the Complainant in the weeks following her appointment as Supervisor in that service, for which assistance she was very grateful. Ms Carey told the Court that the male colleague, N, the Complainant had said was permitted to work from home was likewise redeployed to work in a residential setting and continued to perform administrative tasks from home when not required in that residential setting. In any event, N is not an appropriate comparator for the Complainant for the purposes of her complaint of less favourable treatment on the family status ground as he also had family responsibilities, albeit for children that were older than the Complainant’s child.

A key issue in this case arises from the Complainant’s decision, on the advice of her GP, to commence a period of certified sick leave from the date that her pregnancy was confirmed in February 2020. Apart from a few days of pre-arranged annual leave in March 2020, the Complainant essentially remained on leave connected with her pregnancy until she gave birth. She then went on maternity leave. The Complainant told the Court that went on sick leave from 24 March 2020 because she could not afford to avail herself of unpaid leave and did not think it appropriate to undertake work in a residential setting because of her pregnancy. The consistent evidence of the Respondent’s witnesses is that the Complainant’s absence on medically certified leave was the reason that she was not approached and offered the opportunity to work remotely when the facility to do so started to be rolled out by it in or around May 2020.

Having carefully considered the Complainant’s evidence and that of the Respondent’s witnesses, the Court finds that the Complainant’s claim that she was treated less favourably than other colleagues because of her family status following the outbreak of the pandemic in 2020 is not well-founded for the reasons outlined above. The decision of the Adjudication Officer is set aside and the appeal succeeds.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CC	______________________
22 February 2023	Deputy Chairman