Complainant

Respondent

Parties

Deirdre  Mullally

Hse National Ambulance Service

Representatives

Rachel Hartery SIPTU

Siobhan Egan NAS HR & Payroll Unit,

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-00043661-001

19/04/2021

The Complainant alleges that during her pregnancy related reassigned work station she was discriminated against by the Respondent on grounds of Gender in relation to her terms and conditions of employment.

The Complainant has been employed by the Respondent since the 6th of September 2010. She is an advanced paramedic. She worked approximately 39 hours per week, 5 days over 7 and was based in  New Ross Ambulance Station. On 13th July 2020, the Complainant informed her line manager Mr. Byrne that she was pregnant. This was her third pregnancy.  Two days later she was assigned to operational support. Her new temporary station was 44 km from her home. The Complainant filed her first claim following the move for 10 hours subsistence. That claim was initially accepted by Mr. Byrne. However, the claim was subsequently rejected, and the Complainant was informed that she was not entitled to subsistence because she had been redeployed on health and safety grounds. Any other time she had been re-deployed she was paid expenses.  The Complainant felt that this was fundamentally unfair, so she filed a stage 1 grievance on the 28th of August 2020. In her grievance, the Complainant set out that she was a rostered member of the New Ross ambulance service and had been temporarily assigned to a position in Wexford which was 35 km from her assigned base and 44 km from her home. She stated that she was expected to make this journey in her own time and at her own expense. She set out that she was initially approved for 10 hours subsistence but that was later refused despite her having to spend in excess of 10 hours away from her assigned base during each working day. The Complainant went on to set out that she felt that she was being treated unfairly in comparison to her other pregnant colleagues who had been assigned light duties during their pregnancy in the Southeast, all having been accommodated in their assigned stations or in a station closer to their home. Other male colleagues who are on light duties due to illness or disabilities are accommodated in their assigned stations and start their working hours in their assign stations. If required to travel, they are accommodated with a national ambulance service vehicle. They are not disadvantaged in relation to their time or expense.

The grievance was heard by Mr. Byrne on 23rd September 2020 and the outcome of that grievance was issued to the complainant by letter dated 28th September. The grievance was not upheld.

The Complainant progressed the matter to stage 2. That was heard by Mr. Oliver Riley who also did not uphold the grievance.

The third stage of the grievance was heard by Mr. Graham Finlay. He also did not uphold the grievance.

Several reasons were given at the various stages for not upholding the Complainant’s grievance some of which were:

- the other ladies who were assigned to their own local stations during pregnancy were only facilitated in their stations due to the size of that station.

- no public service vehicles where available as they were being used by other personnel.

- redeployment for health and safety reasons should not incur subsistence.

- alternative roles may not be available in a given location and one may have to be temporarily assigned to another station. In those circumstances, the move would not incur travel and subsistence consistent with national financial regulations.

Mr. Finlay did offer the Complainant an additional 3 days leave as a gesture of goodwill.

From 13th July 2020 up to the complainant’s pregnancy leave on the 7th of December 2020 she worked 56 shifts. For all other reassignments, save for pregnancy related ones, expenses would have been afforded as follows:

Subsistence 55 shifts X 10 hours at €36.97 cents and 1 X 5 hours at €15.41 = € 2048.76

Travel time 90 mins ( 45 minutes each way) X  56 shifts = € 5,033.28.

Travel allowance €17.50 return x56 = €980

 Total = € 8,062.04.

The Complainant argued that she meets the “but for” test, where she can state “but for” her pregnancy she would have received expenses or would not have had extra expenses burdened on her. This is in contravention of section 8 (b) of her contract of employment.

Other employees male and female, who worked alternative duties in areas away from their home stations where accommodated so that their start and finish times where measured from their arrival at the home station. If they were rostered to work 9 to 5, they started their duty at 9:00 in their home station and then travelled in an NAS vehicle on NAS time to the location of their reassignment. The Complainant was treated differently and less favourably than her colleagues. She had to leave her home earlier to be at her reassigned station for start time at 8:00 a.m. The Complainant was not only disadvantaged in relation to time but also in relation to the cost of travelling to the reassigned station which was further from her home.

In comparison, when the Complainant returned from her maternity leave in January 2022, she was assigned alternative duties in a different station. As no vehicle was available she was collected and left home by the paramedic supervisor so there was no additional cost to her for travelling to and from the station.

The Respondent read their submission into the record.  They can be summaries as follows:

The Complainant informed her line manager in early July 2020 that she was pregnant... A risk assessment was carried out as per the national ambulance service policy protecting pregnancy at work. That risk assessment determines that the employee should be moved from frontline duties to mitigate the risk of injury in the course of duty and the potential risk of COVID-19 to her and the baby.

Alternative duties were found and agreed with the Complainant. It was agreed she would be working in the workforce planning office in Wexford General Hospital for the duration of her pregnancy.  Redeployment to this work was deemed suitable as it was within the 45 km of her current work address or home address as set out in the Haddington Road agreement. The Complainant had worked in this office for her two previous pregnancies. It is important to note that had the Complainant been assigned alternative duties in an ambulance service, she would have been expected to travel to and from work at her own expense and would not have been entitled to a subsistence payment unless away from her base for 5 hours or more. If the complainant had been assigned duties that required her to travel from base to base, she would have been provided with an ambulance vehicle. As per normal arrangements, the Complainant would not have access to use NAS vehicles to travel to and from her work station. Vehicles are used on a continuous basis by multiple staff and are parked in the ambulance base for ease of access.

The Complainant’s hours of work mirrored those from the New Ross ambulance station. She continued to receive her shift allowance, cardiac allowance and her advanced paramedic allowance and worked premia hours as part of her roster including public holidays and Sundays and also worked overtime when she was available to do so. She worked approximately 50 shifts during this time and availed of annual leave, including using her leave to finish early on multiple occasions. She also took parental leave to allow her to work less hours whilst ensuring she retained her allowance in accordance with rules that governs the payment of shift allowance for ambulance personnel.

The Complainant made an application for travel expenses and subsistence payments to and from her home address and this was not approved as per the National Financial Regulations. Essentially the Complainant was seeking mileage to travel to and from work and a 10-hour subsistence for attending work at her new base for the duration of the redeployment at Wexford General Hospital. Mileage and subsistence could not be sanctioned for any part of the journey which covers the usual route to and from work. Subsistence can only be paid for trips that are necessary trips away from the employee’s base at least 8 km away from the employees home or base and the length of time away is at least 5 hours. The national ambulance service workforce planning office in Wexford general hospital was assigned as her new base with effect from the 15th of July 2020 and remain so for the duration of her redeployment.

 It is noted that the Complainant is seeking essentially an additional payment of €8,062.04 for the 56 shifts worked, although the Complainant actually worked 50 shifts during the redeployment according to the weekly time sheets, she submitted for payroll purposes. Therefore, the claim for payment for 56 weeks exceeds the shifts worked and therefore she is seeking payment for journeys and attendance at work that did not occur. The complainant has not been able to produce any evidence that demonstrates that she has been treated differently to her male counterparts who have been temporarily redeployed due to ill health or the inability to carry out their duties for a period of time. All staff of the National Ambulance Services are treated the same with regard to the rules that government travel and subsistence payments and local managers are well aware of the criteria and process when staff are redeployment.

Siobhan Egan, following the taking of the Oath gave her evidence as follows:

This matter is not about a loss of earnings. The Complainant was pregnant during covid. She was moved to a new station because she was pregnant during the pandemic so that she won’t be mixing with ambulance staff. Ambulance staff were exposed to covid regularly. All pregnant women were moved to non -ambulance duties at that time.

The Respondent accepts that the Complainant had to travel an additional 45km to her workplace during her temporary redeployment and agrees that that had the knock -on effect of placing an additional cost on the Complainant. However, in dealing with the matter the Respondent had to rely on the Haddington Road agreement. The Complainant did not meet the criteria set out in the agreement and therefore she was not paid travel and subsistence. Under cross examination, the Respondent accepted that the Haddington Road agreement had expired prior to the decision to refuse the Complainant’s claim but did not accept in those circumstances that it was the National Agreement and in particular clause 5.10.11. that was relevant. It was accepted under cross examination that the Complainant worked 44 km from her home, that the re-deployment was necessary and temporary and that she worked 8 hrs shifts in Wexford daily.  The Respondent also accepted that nowhere in the policy does it state that the Complainant cannot receive expenses. It was also accepted by Ms. Egan that if a man had ill health and was redeployed to a station 8kms of more away that he would get subsistence.

The Complainant herein states that she has been discriminated against by the Respondent in not paying her travel and subsistence in relation to her temporary redeployment to Wexford hospital during her pregnancy which also happened to be during the pandemic. The redeployment put the Complainant to additional expenses as Wexford General Hospital was 44 km from her home which was an additional 36km on her normal daily journey to work. The Respondent states that pursuant to the Haddington Road Agreement the Complainant is not entitled to travel and subsistence. It became very clear during cross examination that the Haddington Road agreement is not relevant to this case as it expired in 2016. The fact of its expiry was conceded by the Respondent. It was also conceded that it was the National Financial Regulations that set out the relevant test. Those regulations were actually referred to by Mr. Finley in his outcome letter to the Complainant. Under the regulations at 5.11.4.  Subsistence can only be paid for trips that are necessary trips away from the employees base at least 8 km away from the employees home or base and the length of time away is at least 5 hours. 5.10.1 travel allowances are payable only in respect of necessary absence from the normal place of work. 5.10.9 Normal Place of Work is the place where the employee normally performs the duties of the office or employment.5.11.9 in no case, may subsistence allowance be paid to an officer continuously for a period longer than 6 months in one place without special authority from DPER.

It is not in dispute that the Complainant was transferred to Wexford General Hospital in July 2020 due to her pregnancy and the risk of Covid 19 to her and her baby. The transfer was only for the duration of her pregnancy and therefore could only be described as temporary. It was always never intended that she stay in Wexford Permanently. Therefore, I find that her work base remained New Ross. Her daily trips to Wexford were necessary for the duration of her pregnancy and Wexford was more that 8km from her home and her base and she was required to be there for more than 5 hours per day. On that basis she meets the criteria.

The issue is this case is not whether she meets the criteria or not but whether placing an additional burden on her in terms of her time and her expenses because of her pregnancy amounted to less favourable treatment.

In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated:

"...Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85 places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. "

In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out.  It provided inter alia as follows: 

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a Complainant must prove, on the balance of probabilities, the primary fact from which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if these primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the Respondent to provide that there was no infringement of the principle of equal treatment.

The Complainant argues that her redeployment placed a financial and time burden on her which said burden her comparators did not face. Her redeployment was necessary due to her being pregnant. I am not satisfied that the pandemic played any part in her redeployment as she worked in Wexford General hospital for her two previous pregnancies both of which were before the pandemic. The Respondent gave several reasons why others in similar situations where not burdened like the Complainant was. Whilst all of the examples given may have been valid, they didn’t explain why only the Complainant was left with a burden. Furthermore Ms. Egan conceded during cross examination that if a male employee had to be redeployed due to ill health and he was 8km or more away from his base then he would get paid subsistence. It is on that basis that I am satisfied that the Complainant has established a prima facia case of discrimination.  

The burden now shifts to the Respondent pursuant to Section 85A(1) of the Acts which provides as follows:

“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”.

On any interpretation of Ms. Egan’s evidence the Complainant was treated less favourably than her comparators. She was the only employee who had to drive a substantially longer distance to work meaning she had to leave earlier and would arrive home later than her comparators. Furthermore, she was the only employee who was faced with a financial burden, as the cost of driving to and from Wexford was significantly more than those who were accommodated in the home stations.  Also, those term and conditions were much less favourable than those of the aforementioned male employee who would have received subsistence if he worked more that 8km away for more than five hours. It was open to the Respondent to compensate the Complainant using the National Financial Regulations as is set out above, but they did not. On that basis I find that Respondent has failed to objectively justify the discrimination.  

In all of the circumstances and taking the financial loss the Complainant suffered as a result of the discrimination into account, I find the appropriate amount of compensation is € 15,000.00. 

The Complaint is well founded. I award the Complainant €15,000.00.

Discrimination. Pregnancy. Redeployment. Temporary reassignment. Financial Burden. National Financial Regulations. Haddington Road Agreement.