Complainant

Respondent

Parties

Veronica  Makunike

Mary Street Medical Centre

Representatives

Not Represented

Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00049216-001

15/03/2022

Ms Makunike (complainant) was employed as Medical Secretary with the respondent from 28th June 2016 up to 3rd May 2022 when she resigned. She was earning €305.50 gross per week. Before resigning, she made complaints to the Workplace Relations Commission (WRC) that she was discriminated against on the grounds of gender, family status and conditions of employment. She further claims that she was victimised arising from complaints she made during her employment. Mary Street Medical Centre (respondent) denies that the complainant was discriminated against under the grounds claimed and further denies that she was victimised.  

Summary of Ms Makunike’s Evidence

The complainant gave evidence that she was pregnant in March 2020 and raised concerns about her work environment. She e-mailed the practice on 25th March 2020 seeking to work from home where possible if it could be set up. The practice could not facilitate remote working. On the advice of her doctor, she remained on sick leave. During the sick leave period she was requested to train a member of staff and she did this over the phone over the course of two months.

Her maternity leave commenced in June 2020. Towards the end of the year, she was preparing to return to work and engaged with the respondent. She was in contact with a new manager, Ms Corcoran, to calculate her accrued leave so she could take this leave prior to her return. Due to the limited records available, she provided details of the extra hours she had previously worked. The agreed return to work date after the accrued leave was 25th January 2021.

Prior to her sick leave and maternity leave she worked Thursdays and Fridays along with additional hours on a Wednesday. She sought to return to her previous contracted hours although she could not work on a Friday due to childcare. Due to not being able to work on Fridays, she was offered a one-day week. She felt she was not being afforded her rights to return on similar hours. On 18th November 2020, she wrote an email to her manager requesting her entitlement to return to her full hours and referred to section 26 of the Maternity Protection Act. After further email correspondence with the manager, it was confirmed on 2nd December 2020 that she would return to work two days, and that additional hours were likely to be available as well.

In mid-December 2020, she discovered that staff had received their Christmas bonus and that she had not received anything. Having raised this matter before Christmas, she emailed again on 5th January 2021 stating that ‘The bonus issue is a matter of principle and my understanding is that everyone received the bonus except myself, which I feel is discrimination against me while on protected maternity leave.’ She outlined in this email that she had obtained advice from the Advisory Service of the WRC on her rights and that there had been no pro-active engagement on her return to work and her treatment during her protective leave was disappointing and upsetting. The bonus issue was resolved when her manager confirmed on 12th January 2021 that she would be paid the bonus.

She did not return to work on 25th January 2021 as she was certified sick by her doctor. She was referred to an Occupational Health Review in March 2021, who recommended counselling and an engagement with the respondent particularly as she felt unsupported in returning to work.

This engagement with the practice was a zoom meeting on 22nd March 2021. This was a positive meeting with supportive counselling and planned training agreed. Although there was no date for a return to work, it was stated that the practice would love to have her back next week. She was going to refer to her doctor and inform the respondent by the end of the week. As her doctor was not satisfied of her return to work at that stage, she submitted a further medical certificate for three weeks.

A discussion then took place with the respondent by telephone on 2nd April 2021. She was disappointing with what transpired during this call. The respondent had presumed that she would be ready to return to work and made this very clear during the call. She said that she had recorded the telephone call and when the notes of the call did not reflect the discussion, she said she would forward the recording to the respondent if they requested it.

The accuracy of the notes was in dispute for some time and in August 2021, she requested by email that the recording should be independently reviewed. She also requested an independent mediator to assist in the process and attend the next return to work meeting.

She gave evidence of a further Occupational Health Review on 20th December 2021. The report recommended further engagement with the assistance of an outside mediator or representative.

The respondents did not facilitate an independent review of the notes or an outside mediator despite repeated correspondence by her requesting this.

She then referred her complaints to the WRC in March 2022 and resigned shortly afterwards.

Summary of Complaints

She outlined that her case was that she had been discriminated against as follows:

·       She had to go out on sick leave early in advance of her maternity leave in March 2020 as she was not accommodated to work remotely.

·       She was not supported in returning to work after her maternity leave and had to assert her legal rights to return to her previous hours.

·       She was not paid the Christmas bonus at the same time as all staff, and she had to follow this up with her manager.

·       That she was victimised in the way she was treated by not being supported in returning to work which ultimately led to her resigning in May 2022.

Summary of Mr Sullivan’s Evidence

Mr Sullivan described his role as a doctor and partner in the practice which has up to twenty staff. He described the complainant as an excellent employee prior to her having to take sick leave to protect herself and her baby at the outset of Covid. He described the pressure the practice was under at this time. The priority was the protection of patients and staff. He said that the work of the practice from March 2020 was dealing with phone calls and that steps were in place for social distancing and the use of PPE. He understood Ms Makunike’s decision to remove herself from the workplace and that this was her decision. He said that communications at this time with her was through text messages and these were cordial exchanges. He accepted that not paying the bonus at the same time as other staff was an error and that this was corrected within a reasonable time frame. He outlined that she was facilitated with her accrued leave and that the operations manager would give evidence on the arrangements for her return to work.

He was questioned by the complainant on the existence of a safety review, patient access, the layout of the practice and arrangements for cleaning surfaces. He was questioned on whether requesting her to assist in keeping salaries going was in effect putting pressure on her when she was on certified sick leave.

He gave reasons why the practice did not engage an outside mediator. He said that the practice was supporting her by obtaining two Occupational Health Reports and providing counselling and training. He said the practice followed the recommendation of Occupational Health on engagement with the complainant. The report recommended two options and she was able to be accompanied rather than involve an outside mediator.

Summary of Ms Cantwell’s Evidence

Ms Cantwell gave evidence of her role as a doctor and partner within the practice. She outlined that pregnancy guidelines were not available at the outset of Covid and that she herself had concerns when pregnant at that time. She decided to remain working safely within the practice. She outlined the serious challenges due to Covid at that time.

At the initial return to work meeting in March 2021, Ms Makunike raised the issue of her not feeling supported in obtaining her hours and not receiving the bonus payment. She said that she apologised at the meeting in relation to the Christmas bonus delay.

She outlined that the first return to work meeting in March 2021 was positive. It was then frustrating that the complainant was not returning to work as there was an expectation that she was. During the telephone call on 2nd April 2021, she said she was frustrated that a further cert was submitted for three weeks when the expectation was that the complainant would be returning with the supports in place. There was supportive counselling in place. She confirmed that there was no explicit date of a return to work during the call although there was expectation of her imminent return, particularly given the supports in place.

Ms Makunike questioned her on how the expectation of her return had arisen when she had not been certified to return by her doctor. She was questioned on the delay with sorting the Christmas bonus and why she was not supported more on her return to work.

When questioned on the recommended use of an outside mediator, she said she wanted to de-escalate the stress and the involvement of an outside party was not the preferred option.

Summary of Ms Corcoran’s Evidence

Ms Corcoran role is operations manager within the practice. She gave evidence that she had never worked with the complainant as she was on maternity leave when she started as manager in September 2020. She confirmed that the accrued leave was sorted which allowed for extended leave and then an expected return to work date at the end of January 2021. She stated that as the complainant could not work on Fridays, this posed a problem as there were fewer staff available on Fridays. She gave an outline of the breakdown of staff on gender. There was now one male receptionist who commenced after the complainant went on leave. She accepted that there was a delay with sorting the Christmas bonus but that this had to be approved by management and that it was a very busy time for her and the practice.

Ms Makunike questioned her on the delay with facilitating her hours on returning to work. She was questioned on the counselling arrangements and why there was an expectation on her return before she had completed counselling. She was questioned on why there was frustration during the call on 2nd April 2021 when this had to be cleared by her doctor and the follow-on certificate was delivered on time, as agreed.

On the refusal to use an outside mediator, she stated that they wanted to keep things normal, and an external person would make things more formal instead of having a normal conversation. She clarified that she was advised that she could bring a family member or friend to the next return to work meeting.

Respondents Summary

The respondent’s representative outlined that the discriminatory grounds raised were not proven and no comparators were identified. He contended that a prima facie case had not been made out. He referred to the case law in the respondent’s submission and the proofs required of the complainant. In essence, the respondent had no case to answer. He questioned as to why only one recording was made available with no recording of the positive meeting in March 2021.     

The Law

The Employment Equality Acts 1998 to 2015 (“the Acts”) promote equality in the workplace and provide protection against discrimination and victimisation. The Acts prohibit discrimination on nine grounds, including gender and family status. Discrimination occurs when one person is treated less favourably than another is, has been or would be treated. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. Also, an employer cannot discriminate against an employee in relation to conditions of employment. 

Section 85A(1) of the Acts provides:

“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.”

The complainant is required to establish facts from which discrimination or victimisation can be inferred. It is only when this burden is discharged does the burden shift to the respondent to show that no unlawful discrimination or victimisation took place. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of this evidential burden on a complainant and held:

“The first requirement is that the claimant 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 claimant must prove, on the balance of probabilities, the primary facts on 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 prove that there is no infringement of the principle of equal treatment.”

Section 77(5)(a) of the Acts provides:

“Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

(6A) For the purposes of this section-

(a)    Discrimination or victimisation occurs-

(1)    If the act constituting it extends over a period, at the end of the period,

(2)    If it arises by virtue of a term in a contract, thoughout the duration of the contract, and

(3)    If it arises by virtue of a provision which operates over a period, throughout the period,

It is well recognised that discrimination or victimisation is rarely a once-off issue and often occurs over a period. Where discrimination or victimisation is alleged to be continuing over a period, s 77(6A) of the Employment Equality Acts permits the referral of such a complaint, provided that the claim is submitted within six months of the end of the alleged discrimination or victimisation. 

Findings on Discrimination

Gender Ground

The complainant alleges discrimination due to not being facilitated to work remotely when she was pregnant and vulnerable to Covid in March 2020. As the complaint was received in the Workplace Relations Commission on 15th March 2022, the reference period as per Section 77(5)(a) runs from 16th September 2021 to 15th March 2022. As the alleged discrimination took place in March 2020, it is outside of the reference period.

As I do not have jurisdiction under the Act, I do not find this complaint well founded.

Family Status

The complainant alleges discrimination due to her not being afforded her pre-maternity leave hours. At issue was whether the complainant was afforded comparable terms as she could not work on Fridays due to childcare. Therefore, a re-negotiation of the terms of her return was required. This was facilitated by the respondent although only after the complainant asserted her rights as per the Maternity Protection Act. Notwithstanding that there was a delay in facilitating a return on similar terms, the alleged discriminatory act occurred in March 2021 at the latest. The alleged discrimination is therefore outside of the prescribed reference period.

As I do not have jurisdiction under the Act, I do not find this complaint well founded.

Conditions of Employment

The Christmas Bonus issue arose in December 2020 and was resolved in January 2021. Again, the complainant had to assert her rights by emailing the respondent stating that she felt she was being discriminated against while on maternity leave. As this alleged discrimination occurred in January 2021 at the latest, it is outside of the prescribed reference period.

As I do not have jurisdiction under the Act, I do not find this complaint well founded.

Continuing Discrimination

The complainant gave evidence and submitted a recording of the way she was treated by the respondent on the telephone call of 2nd April 2021.

Evidence was also given of treatment towards her when she requested by email on 24th August 2021 that an independent review of the minutes take place. In the same email she also requested an outside mediator at the next return-to-work meeting. This issue was ongoing and unresolved up until the receipt of the complaint by the WRC on 15th March 2022.

Although these issues were of considerable importance to the complainant and contributed to her ultimate decision to resign, there was insufficient evidence advanced that the events from 2nd April 2021 to 15th March 2022 were discriminatory acts as defined in the Act.

The submission and evidence by the complainant of the way she was treated arose during a return-to-work process. Therefore, even though these issues were ongoing in or around the reference period, I do not find that these issues are linked to or are a continuum of the previous alleged discriminatory acts under gender and family status.

I find that the complainant has not made out a prima facie case of discrimination.

I do not find this complaint well founded.

Victimisation Complaint

Section 74 (1) of the Act states-

“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

The test and case law for establishing whether there has been victimisation was set out in the respondent’s submission and is copied below for ease of reference.

The Respondent refers to Department of Defence v Barrett EDA 1017where the Labour Court stated-

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

Protected Act

From a review of the submissions and evidence, the complainant was required to make representations to the respondent from 18th November 2020 onwards. Below are two examples-

·       On 18th November 2020, she emailed her manager outlining her expectations for her imminent return to work. She concluded the email stating that ‘Please find the below link to the Maternity Protection Act section 26 that we also briefly discussed and hope this will be helpful in finding a resolution for my return to work.’

·       On 5th January 2021, she emailed her manager ‘The bonus issue is a matter of principle, and my understanding is that everyone received the bonus except myself, which I feel is discrimination against me while on protected maternity leave.’ She further outlined in this email that she had obtained advice from the Workplace Relations Commission on her statutory entitlements and that there had been no pro-active engagement on her return to work and her treatment during her protective leave was disappointing and upsetting. 

 I find that the above representations are protective acts under 2(a), 2(f) and 2(g) and therefore this engages the second part of the test as to whether the complainant was subjected to adverse treatment.

Adverse Treatment

As a valid victimisation complaint is a separate and distinct complaint under the Act, I need to ensure that there was alleged adverse treatment within the reference period, 16th September 2021 to 15th March 2022.

In Panuta v Watters Garden World Ltd EDA099, the Labour Court rejected the proposition that victimisation could only arise where a person suffered a detriment in respect of his or her conditions of employment. The Court was satisfied that the decision of the Court of Justice in Coote v Granada Hospitality Ltd was authority for the proposition that the concept of “victimisation” should be

“construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act”.

The complainant gave evidence of alleged adverse treatment during the telephone conversation of 2nd April 2021. This conversation was recorded by her without the respondent’s knowledge. On 5th April 2021, when the respondents note of the call did not reflect the recording, she made the respondents aware that she had a recording which was available to them. When requested by the respondent she forwarded the recording on 26th July 2021.

At the first day of hearing, the respondents objected to the submission of the recording as evidence as it was done without the respondent’s knowledge. At the beginning of the second hearing date, I informed the parties that as both sides already had access to the call, neither side were going to be prejudiced by me hearing this evidence. Also, the complainant was relying on this evidence as an example of adverse treatment, so it was necessary for me to hear the recording.

As the note of the telephone conversation was in dispute, despite the recording, this created another obstacle to an early return to work. The Occupational Health Report of 20th December 2021 supported the complainants first request of 24th August 2021 that an outside mediator assist to enable a return to work.

Despite this Occupational Health recommendation in December 2021 supporting the complainant’s request, the respondent did not facilitate an outside mediator’s involvement.

At this juncture it is worth setting out the relevant extract of the Occupational Health Report-

‘In order to resolve the issue, it would be appropriate at this stage to engage with Veronica and this could be with the assistance of an outside mediator or indeed she could be allowed to bring a representative to the meeting with her.’

There were extensive communications going back and forth from April 2021 to March 2022 on the disputed notes of the call and the involvement of an outside mediator.

The significant communications were-

·       24th August 2021- the request from the complaint for independent review of minutes and outside mediator.

·       2nd September 2021- correspondence from respondent that they were getting legal advice on this issue.

·       20th December 2021- the Occupational Health Report recommendation supporting an outside mediator.

·       25th March 2022- the respondent inviting the complainant to a return-to-work meeting stating, ‘You are more than welcome to bring a family member/friend with you.’

From the complainant’s evidence, the telephone call of 2nd April 2021 and later request to involve an outside mediator form the basis of the alleged adverse treatment. The telephone call of 2nd April 2021 deteriorated into a frank exchange of views. The respondent emphasising that they had been planning and were ready for her return, and the complainant clarifying her intention to attend the agreed counselling and that her doctor had not certified her return, as yet.

This 2nd April 2021 telephone call needs to be considered with subsequent events. Ms Cantwell was to give feedback to the other partners. In evidence, Mr Sullivan confirmed as partner he was aware of the circumstances under which the complainant went on sick leave prior to her maternity leave in March 2020 and her grievance on the Christmas bonus towards the end of the year. The other partners were also therefore likely to have known the full history.

Based on the sequence of events as described, there was an obligation on the respondent to do more to support a return to work. The complainant made reasonable requests for an independent review of the call and the involvement of an outside mediator. The involvement of the outside mediator was supported by the Occupational Health Report. The lack of action over a prolonged period by the respondents contributed to a delay to any potential return to work. The complainant has made out a prima facie case that she did suffer adverse treatment. The adverse treatment occurred during the telephone call of 2nd April 2021 up to the complaint to the WRC in March 2022 as reasonable steps were not taken to facilitate a return-to-work. I am satisfied that the adverse treatment extended over this period and was ongoing and is therefore within the reference period.

Adverse Treatment. A Reaction?

Therefore, the third part of the test falls to be considered. Was the adverse treatment in reaction to the protected action taken by the complainant on 18th November 2020 and 5th January 2021. Effectively, as I have decided that the adverse treatment occurred from 2nd April 2021 to 15th March 2022, I need to assess whether this was a reaction the earlier complaints of discrimination.

From the evidence of Ms Cantwell, there was an acceptance of some frustration on her part. This is also evident in the recording. Her reason for this was that the complainant did not return to work after the positive earlier meeting. This was the first real engagement by Ms Cantwell after the positive meeting of 22nd March 2021 on foot of the initial Occupational Health Report recommending engagement.

Despite this background, the meeting was conducted in a very formal manner and a note of the call was drawn up immediately. Both parties acknowledged during the telephone call that it was not going well, yet there was no immediate follow up to retrieve matters. The onus was clearly on Ms Cantwell as she had set the tone and the expectations of the practice on the call. The recording reflects that Ms Cantwell took charge of the discussion.

The note of the call set a narrative when it stated-

‘Dr Cantwell responded that the whole purpose of the extensive plan was to help facilitate in the rebuilding of her perceived confidence issues and that her perceived work-related stress, as outlined in the occupational health report, was related to Covid concerns in her pregnancy?’

This narrative was biased against the complainant as ‘Covid’ was not mentioned during the call. This is only one example of the note not being reflective of the discussion and the complainant set out other examples of inaccuracies. This indicates that the respondents were quoting selectively from the Occupational Health report to link matters back to when the complainant went on early maternity leave.

I have already set out the background on the decision of the practice not to involve an outside mediator from August 2021 onwards. The correspondence went back and forth over this protracted period with no real explanation from the respondents. I raised this during their evidence and Mr Sullivan explained that there were two options as per the Occupational Health Report and it was decided to keep matters internal and allow the complainant to be accompanied and supported.

On reviewing the evidence and submissions, some basic rights in any future return-to-work meeting were not being afforded to the complainant. The recommendation in the Occupational Health report stated that she could be “represented”. In fact, all she was offered in the email of 25th March 2022 was to bring a friend or family member. This was seven months after her initial request. There is a huge distinction with bringing a representative who can advocate on one’s behalf and a friend or family member who may have no advocacy skills.

On 2nd September 2021, the practice manager emailed the complainant to say that they were getting legal advice on the outside mediator issue. There was no reference in the respondent’s submission to getting legal advice nor did it arise in evidence other than it being included in the complainant’s submission. The respondents did not explain adequately in evidence why a basic requirement to assist the complainant was not afforded to her.

Although a comparator is not required to sustain a victimisation complaint, I do not envisage that any other staff member seeking to return to work would have the occupational health recommendation set aside. 

On the balance of probabilities, I find that the adverse treatment by the respondents towards the complainant was a reaction to her earlier protected actions.

The two examples of adverse treatment, such as the telephone call and subsequent notes, and then the reluctance to involve an outside mediator or representative, have not been adequately explained or rebutted in evidence by the respondents.     

For completeness, I also need to consider whether the adverse treatment towards the complainant may have arisen due to the recording of the telephone conversation and not as a reaction to the earlier protected acts. The recording of the call itself may have led to a breakdown of trust.  

Having listened to the call along with consideration of the immediate drafted notes with inconsistent narrative, I am satisfied, on the balance of probabilities, that the adverse treatment was a reaction to the earlier protected acts. These actions by the respondent all occurred prior to the respondents being aware of the existence of a recording.  

I find that the complainant has been victimised and the complaint is well founded.

Redress

Section 82 of the Act states the following:

(1)    Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a)…..

(b)……

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77

I am minded that as per the Directive that penalties must be effective, proportionate, and dissuasive. The complainant in this case was denied any potential return to work and was in limbo for almost a year. Ultimately, she decided to resign as it was clear that despite almost four years of excellent service there was no realistic option of a return to work.

An award is not confined solely to monetary or financial loss and should have regard to the overall effects of victimisation. For the complainant in this case, the adverse treatment occurred over a protracted period.

In the preamble, I already referenced Department of Defence v Barrett EDA 1017where the Labour Court stated the protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law.

Also, in Dublin City Council v. McCarthy EDA022the Labour Court agreed with the view of the equality officer at first instance that “the victimisation of a person for having in good faith taken a claim under the Equality Legislation is very serious as it could have the impact of undermining the effectiveness of the legislation and is completely unacceptable.”

For the above reasons, I decide to award redress of €20,000 compensation which is the equivalent of just less than 18-month’s salary.

CA-00049216

The complaint of discrimination on gender is not well founded.

The complaint of discrimination on family status is not well founded.

The complaint of discrimination on conditions of employment is not well founded.

I find the complaint of victimisation to be well founded. The respondent is to pay the complainant the sum of €20,000 compensation. This award is compensation and is not in the nature of remuneration.

Discrimination, Victimisation