Complainant

Respondent

Parties

Soniya  George

Talbot Group

Representatives

  Self-represented

 Tevlin Clarke HR consulting.

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-00057755-001

17/07/2023

The complainant has submitted a complaint of discrimination under the Employment Equality Acts, 1998-2015 (the “Acts”), that she was discriminated against on the grounds of gender and family status. This occurred when the respondent failed to assign her to a safe ward and obliged her to apply for health and safety benefits from 4/4/- 25/6/2023.

She had worked as a staff nurse with the respondent since 15/3/2022.

The complainant worked 42 hours a week. Her gross pay is €1925 per fortnight.

She submitted her complaint to the WRC on 17/7/2023.

The respondent advised that the correct name of the employer was the Talbot Group. The parties agreed to correct the respondent’s name, and this is reflected in the decision.

The complainant submits that the respondent discriminated against her on 18/4/2023 on grounds of family status and gender when they failed to find an alternative, salaried role for in a unit which respected her right to a safe and healthy work environment during pregnancy,

The complainant gave evidence under affirmation.

The complainant has worked as a staff nurse in the respondent’s facility since 15/3/2022.

The complainant advised the respondent of her pregnancy when 5 weeks pregnant on 9/3/2023. She was obliged to inform the respondent by 11the 12th week of her pregnancy.

The respondent did a risk assessment and placed her on Health and Safety leave on15/3/2023. Her entitlement to three weeks paid health and safety leave expired on 4/4/2023. The respondent then decided that she must take health a safety leave, which only attracted €154 a week, as they stated they were unable to find a safe place for her to work within their complex.

The complainant stated that there were 17 staff on Health and Safety leave in 2023. The benefit payment was only €320 per fortnight as opposed to her full salary of €1925 gross per fortnight.

Originally the person in charge of her unit advised that she would be deployed to another part of the respondent’s complex, a safer ward- FH.

One week later and the day before her scheduled transfer to FH, she was told FH was unsafe and she could not be transferred there. The respondent told her at that point that she would have to go on Health and Safety leave and that they would find a safe unit for her to work in. The respondent failed to organise her deployment to a safe unit. Three weeks later on 4/4/2023, she had to go on unpaid health and safety leave.

On 22 March she tried to get an agreement to return if only for a few hours a week.

She believes that a demand for extra staff must arise due to staff absences on other types of leave and that this should have yielded a safe position for her.

It was only after she lodged her grievance with the respondent on 4/4/2023 that she received an offer on 15 May of a safe, alternative role. She took up this role on 26 June.

She felt very stressed by the respondent’s inaction in finding a unit for her and maintaining her on unpaid Health and Safety leave.

She rejects the outcome of the grievance process which concluded that the respondent was obliged to place her on Health and Safety Leave and was unable to a find a safe staff nurse position for her within its complement of staff nurses and within its facilities.

She believes that an alternative role, for example in auditing, rostering staff, risk planning, even if for only 6 hours a day, 5 days a week could have been organised for her. The respondent failed to explore any of these roles for her.

The complainant states that she was treated differently to other staff, unidentified, who pregnant and unable to work in units were assigned to office work. This happened before 2022.

Pregnant women working on the Balbriggan unit were offered alternative roles.

The complainant when questioned stated that she was not aware of any pregnant nurse with a different marital status working in her unit or in the respondent’s other facilities during pregnancy.

Concerning the maternity leave vacancy which she was offered effective June, the respondent must have known of its existence well before they offered the vacancy to her on 15/5/23.

She was prepared to take on any work to maintain her salary

Cross examination of witness.

The witness confirmed that she had no problem with the risk assessment as the unit in which she was working warranted this.

The witness advised that F unit to which she was to be deployed was originally stated to be a safe assignment but was later described as too dangerous.

The witness when asked stated that she was unsure if the respondent was making genuine efforts to find her an alternative role in a safe unit.

To the point that she was advised of a vacancy on the 25/5/2023 in B House, she stated that this only occurred after she had lodged a grievance.

She did not accept the outcome of the grievance procedure as insufficient efforts were made to find her a safe assignment and that no alternative tasks were considered for her.

She asks that her complaint be upheld.

The respondent denies that they discriminated against the complainant on any of the grounds contained in the Acts.

The complainant has failed to raise a prima facia case of discrimination. The complainant has failed to put forward a comparator.

The complaint should be dismissed.

The nature of the respondent’s clientele some of whom due to their specific conditions engage in physically aggressive behaviour towards staff, left them with no other option but to require the complainant to take health and safety leave while pregnant.

Originally the respondent envisaged a role for the complainant in F unit, but they had to resile from that having done a risk assessment and another nurse was on health and safety leave from that unit.

Clients’ risky and unpredictable behaviour meant that eleven direct support workers had to go on health and safety leave during the relevant period.

The respondent did everything to try and source an alternative position for the complainant, to no avail

They advised her to apply for Health and Safety benefit, but she declined to do so

Then vacancy in B unit to which she was deployed arose as result of a nurse going on maternity leave.

Evidence of HR manager given under affirmation.

The witness is HR manager for the respondent’s multiple facilities in Meath, Dublin, and Louth.

The witness received an email from the complainant in March 2023 looking for alternative options to her then current assignment.

She advised the complainant in an email on the 26/3/23 that there were no safe wards into which she could be deployed She contacted the workforce planning team to attempt to source an alternative safe position for the complainant. Only 11 of the respondent’s 56 units were deemed safe for a pregnant worker. They were no vacant staff nurse positions in these eleven units.

She advised the complainant that she had 11 direct support workers on Health and Safety leave.

The witness showed the complainant how to complete the application form for Health and safety Benefit and advised her of the requirement to fill out the complainant’s section of the form.

Concerning the alleged slowness of coming up with an alternative role, the witness was not aware until 25 May of the employee whose pregnancy would generate a vacancy for the complainant in B unit. Had she known she would have told the complainant. The witness told the complainant within a day of knowing of this impending vacancy

 The witness offered the complainant the position of a community nurse. She declined this option as she didn’t have a car.

Cross examination of the witness.

To the point as to why the complainant could not have been assigned to alternative tasks in F unit, the witness stated that as a direct support worker she would have had interactions with residents. It was too risky, and the respondent was unable to eliminate risk. It had to be a safe job as opposed to creating a new role in administration for the complainant.

To the question as to why the complainant could not have slotted into another role designated for a new appointee, the witness stated that this new appointee had already made arrangements to move from India with her family to take up this role.

The witness confirmed to the adjudicator that when the complainant was placed on Health and Safety leave there were no nurses out on sick leave or maternity leave in the 11 units considered to be safe.

Legal Arguments.

The respondent submits that the complainant has failed to make out a prima facie case of discrimination and relies on the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201. The respondent also points to Arturs Valpeters v Melbury Development s Ltd (2010), ELR 64 where the Labour Court concluded that

“mere speculation , unsupported by evidence cannot be elevated to  a factual basis upon which an inference e of discrimination can be drawn”

The respondent requests that the complaint should be dismissed.

I am required to decide if the complainant was subjected to discriminatory treatment on the grounds of family status and gender, contrary to the provisions of the Employment Equality Acts,1998-2015, during the period 18/4-25/6/2023, when the respondent, deciding that the unit in which she worked  posed a serious threat to the health and safety of a pregnant nurse,  failed to provide an alternative, safe , salaried  role for her. The respondent’s failure led to the loss of salary for a period of 12 weeks.

The act of discrimination occurred on the 18/4/23 when deprived of an opportunity to work and earn her salary, the respondent advised her to apply for Health and Safety Benefit, a sum of €154 a week instead of her salary of €962 gross a week. This treatment contrasted unfavourably with the treatment of other pregnant staff, who faced with a risk in their wards, were afforded alternative work at the same salary.

The validity of a complaint submitted under the Acts must be examined with their statutory provisions.

Relevant Law.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where

“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)”.

Section (2) provides

“As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for 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”), and

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

Burden of Proof.

Section 85A of the Acts lays the onus of proof with the complainant to establish a prima facie case of discriminatory treatment contrary to the provisions of the Acts. Section 85A of the Acts provides that facts must be

“established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201, the Labour Court concluded that”

 “a complainant 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 was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”

In order to meet and move beyond this first test, the complainant is obliged to satisfy three elements of a test laid out in In Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20 and in other decisions. They are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant    discriminatory ground is, has been or would be treated.”

Application of the law to the circumstances of the instant case.

I explained to the complainant who was unrepresented of the initial obligation to raise an inference of discrimination and to the obligation to illustrate less favourable treatment on the grounds of gender and family status as required by section 85A of the Acts.

It is not contested that the complainant’s unit posed a serious health and safety risk. What is contested is the bone fides of the respondent’s efforts to find an alternative salaried role.

The complainant is married and female.

The alleged less favourable treatment is the respondent’s failure to provide her with a safe alternative place of work on the same salary.

Less favourable treatment on the grounds of gender and family status?

The complainant misunderstood the obligations resting with her to show that a person of a different gender or of a different family status, faced with a risk to their health and safety was provided with a safe, salaried alternative.

The complainant did refer to other non- pregnant staff who were provided with an alternative, but whose employment was not obviously governed by the Safety Health and Welfare at Work (General Application) Regulations 2007 which obliges an employer to do a risk assessment for a pregnant woman. If the employer cannot provide suitable alternative employment for that pregnant employee, the employee must be granted Health and Safety Leave in accordance with Section 18 of the Maternity Protection Act, 1994. The complainant was unable for obvious reasons to identify a male deprived of a salary and reduced to health and safety benefits.

I asked the complainant if she could identify a pregnant nurse of a different family status, provided with a safe, salaried alternative. The complainant was unable to point to a person of a different family status, pregnant, yet afforded an alternative role and who avoided the loss of income attendant on having to take health and safety leave

The complainant was unable to point to a male who faced with a risk to his health and safety by virtue of the make-up of the patients on his unit, was enabled to be maintained on salary in a safe unit.

The complainant did refer to the fact that her salary was one of the highest among the nursing cohort and the failure to offer her a salaried alternative could have been a motivating factor. That has nothing to do with gender or family status.

Based on the evidence and the law, I find that the complainant has failed to raise an inference of discrimination on the grounds of gender or family status and her complaint, therefore, cannot succeed.

I decide that the complainant has failed to establish facts from which discrimination based on grounds of either gender or family status can be inferred. Her complaint cannot succeed.

Lack of prima facie evidence