Industrial Tribunals Northern Ireland Decisions

 


Macauley v Homefirst Community Health and Social Services Trust (Sex Discrimination) [2002] NIIT 03890_97 (27 March 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 03890/97SD

APPLICANT: Colleen Macauley

RESPONDENT: Homefirst Community Health and Social Services Trust

DECISION

The unanimous decision of the tribunal is that is the respondent did not unlawfully discriminate against the applicant on the grounds of her sex and her application is thereby dismissed.

Appearances:

The applicant was represented by Mr E McArdle, Barrister-at-Law, instructed by

James J Macauley, Solicitor.

The respondent was represented by Mr S A Crothers of Brangam Bagnall & Co, Solicitors.

1. The applicant in her Originating Application complained that she had been unlawfully discriminated against on the grounds of sex/pregnancy contrary to the Sex Discrimination (Northern Ireland) Order 1976 and relevant European Law in particular the Equal Treatment Directive in connection with her continued employment by the respondent, after she became pregnant, as a care assistant at a residential home known as Moylinney EMI Unit ("Moylinney"). The respondent, in its Notice of Appearance, denied that it had unlawfully discriminated against the applicant. In a decision recorded in the Register on 24 August 1999 the tribunal made an Order on the application of the applicant amending the applicant's Originating Application to include certain additional matters she had been told at a meeting on 14 March 1997 with the respondent.
2. The applicant was initially employed by the respondent at Moylinney from 20 October 1995 as a temporary part time laundry worker. It was a term of the said contract 'This offer of temporary employment is conditional on your acceptance that you will be employed for a period to cover a vacant post until it is filled through open competition or no longer required then your employment will automatically conclude'. The applicant successfully applied and was appointed on 24 January 1996 as a temporary part time care assistant at Moylinney. It was a term of the said contract dated 20 February 1996 – "This offer of temporary employment is conditional on your acceptance that you will be employed for a period to cover the absence of Mrs B Ferguson on long term sick leave and that on her return your employment will automatically conclude".
3. On 17 April 1997 the applicant lodged with the respondent a Maternity Certificate dated 16 April 1997 stating she wished to commence her maternity leave on 17 May 1997. By letter dated 1 May 1997 the applicant was reminded by the Personnel Department of the respondent that as she was on an Event Contract to cover Mrs B Ferguson's sick leave she would be entitled to 18 weeks' maternity leave and her right to return to work would depend on whether or not the reason for which she was originally employed still existed. In a further letter dated 3 June 1997 the applicant was informed that her application for maternity leave had been approved and she should absent herself from duty on 11 May 1997 and return to duty on 14 September 1997, provided that the reason for which she had been originally employed still existed and she was to contact her Head of Department to confirm this.
4. On 13 August 1997 the applicant spoke on the telephone to the Manager of Moylinney, Mrs Ann Smyth and was informed, inter alia, that Mrs B Ferguson had decided to resign on grounds of ill health and her contract had therefore terminated and her position had been filled by a Ms Taylor, and that as a consequence the applicant's contract, being such an event contract, had ended and there was therefore no position for her to return to on the conclusion of her maternity leave. Following the birth of her child, a boy, on 23 June 1997, the applicant visited Moylinney in July 1997 to show her child to her colleagues. On that visit she was introduced to Ms Taylor, who had by that date taken up the said position. Despite the said telephone call, by letter dated 20 August 1997 the applicant wrote to the respondent confirming that she had informed Mrs Smyth that she wished to exercise her right to return to work following her maternity leave and that due to the nature of the birth of her child would not be fit for duty until 14 October 1997. Mrs Smyth replied to the said letter by letter dated 10 September 1997 and after referring to the previous correspondence from the respondent confirmed what she had told the applicant in their telephone conversation of 13 August 1997. In a further letter dated 7 October 1997 the applicant was informed by the respondent, after referring to previous correspondence, "Your temporary contract was to cover Mrs B Ferguson's sick leave, and when this need was no longer required your employment would automatically conclude. You were advised in the letter to you concerning your maternity leave that you would only recommence work following your maternity leave if the reason you were originally employed still existed. As you were advised previously this is not the case and your contract has been discharged by performance."
5. The applicant in her Originating Application and before the tribunal made the complaint that she had been unlawfully discriminated in relation to the termination of her said contract in the above circumstances and her failure to be appointed to the position vacated by Mrs B Ferguson and obtained by Ms Taylor and that this was due to her pregnancy.
6. The applicant was at all times anxious to secure a permanent full time position with the respondent and in particular at Moylinney. The applicant in or about November 1996 made application for two such posts at Moylinney, which were advertised in the local press and she was subsequently short-listed for interview. The advertisement for the said posts expressly stated that "a waiting list may be compiled for any similar permanent/temporary full/part time vacancies arising in above Unit in the next 9 months". In addition to the terms of the said advertisement the applicant was fully aware from her knowledge of the respondent's recruitment practices that such a waiting list was normally compiled after such a recruitment exercise.

Neither the interviews nor the filling of the said posts was the subject of this claim. The applicant was not successful at the said interviews and was not appointed to either of the said positions nor was she placed on the waiting list that was drawn up following the said interviews. Ms Taylor, who was appointed to the post vacated by Mrs B Ferguson had also applied for the said posts. But whilst she was not appointed she was, after the interviews, unlike the applicant, placed on the waiting list from where she was appointed to Mrs Ferguson's position. The applicant following the said interviews, which were held in January 1997, had a feedback interview with Mrs Smyth and another, but the effect of her poor interview on her future employment was not discussed. The applicant maintained in her evidence that, following the said interviews, she did discuss the impact of the interviews on her employment with Mrs Anderson, who from 1996 had been a Union Staff representative at Moylinney and, in particular, what would occur if Mrs Ferguson's post was advertised when the applicant was on maternity leave. She contended that Mrs Anderson had assured her she would be entitled to be interviewed for the post when it was advertised as a permanent position, even if she was on maternity leave and would be allowed to compete for the post. Even if it had been stated, Mrs Anderson, it was accepted, as a Union Representative, would not have been entitled to bind the respondent.

The tribunal is satisfied that no such discussion took place and accepted the evidence of Mrs Anderson, whom the tribunal found to be an impressive and independent witness, that the only conversation she had with the applicant after the interviews related to the applicant's admission as to how badly she had done, and that the only conversation she had before the interviews was to allay the applicant's concern that the said posts advertised in November 1996 were not the advertisements for the post she was covering under her contact in the absence of Mrs Ferguson. The tribunal was further satisfied that if Mrs Anderson had had any concern about the filling of Mrs Ferguson's post by Ms Taylor from the said waiting list she would have expressed them at the time to the respondent.

7. Subsequent to the said interview the applicant who was then pregnant continued to work as a temporary part time care assistant at Moylinney and there was no suggestion that during this period that her pregnancy caused any difficulties in her relationship with the respondent. However, on 14 March 1997, the applicant was at work at Moylinney on the early shift when she became aware that she might be having medical problems relating to her pregnancy. After taking a protein test she became concerned that she might be suffering from pre-eclampsia which had been a complication of her previous pregnancy. After contacting the hospital, arrangements were made for her to go straight from work to the hospital for appropriate tests to be made. The hospital advised her that in their opinion it certainly looked as though she had pre-eclampsia but she should go home for complete bed rest for three days when her condition would be monitored and a diagnosis could be made, and that if she was suffering from the condition she would not be able to return to work for the remainder of the pregnancy. The applicant reported back to Moylinney and spoke to Mrs Smyth in the back office where Mrs Kenny, the secretary, was also present. The tribunal is satisfied that, in that conversation with Mrs Smyth that the applicant relayed to Mrs Smyth what she had been told by the hospital but also gave the firm indication that she herself did not believe she would be able to continue working. The applicant alleged, that, in the course of this conversation, that Mrs Smyth said she was to take the 3 days leave but if the applicant had to put in a sick line at the end of the three days Mrs Smyth would have no alternative but to terminate the applicant's contract; explaining that as the applicant was there to cover sick leave for Mrs Ferguson and was now going to be off sick herself she would be of no use to the Unit. The applicant also alleged that she was told by Mrs Smyth that in any event all temporary workers were to be let go at the end of that month; Mrs Ferguson had been medically retired and her replacement had been picked from those who had been interviewed in January, and that the applicant was not entitled to any maternity pay and benefits.

The tribunal is satisfied having considered all the evidence that the applicant has not accurately reflected what took place. In particular, the tribunal is not satisfied that Mrs Smyth made any reference to terminating her employment nor made any suggestion that as the applicant was there to cover Mrs Ferguson's sick absence she would be of no use to the Unit. It is further not satisfied that there was any reference, in the course of this conversation, to the replacement of temporary staff at the end of that month; or that there was any reference, at that time, to the medical retirement of Mrs Ferguson and that her replacement had been chosen. The tribunal is satisfied that at that time, although there was a clear possibility that Mrs Ferguson might decide to take medical retirement and not return to Moylinney that no such decision had been taken, and further that Mrs Smyth would not have been in a position as the Manager of the Unit to give such an indication as such matters would have been the responsibility of the Personnel Department of the respondent. The tribunal was satisfied that Mrs Smyth did remind the applicant that if she had to stay off work she would need to continue to send in sick lines until she was in a position to send in her certificate of maternity benefit. The tribunal does not accept that Mrs Smyth indicated that the applicant was not entitled to any maternity pay and benefits. The tribunal noted, in this context, that the applicant herself had approached Mrs Smyth in January/February 1997, and also asked Mrs Anderson her Union representative to speak on her behalf to Mrs Smyth, to see if the applicant could be given additional hours to ensure she would be entitled to the higher rate of maternity benefits and that Mrs Smyth had facilitated her in this regard. The applicant did not make any complaint to Mrs Anderson, her Union Representative at this time, which the tribunal found surprising if Mrs Smyth had said what was alleged. The tribunal was further confirmed in its view, as set out above, by examination of the entry made by Mrs Kenny in the day book, which had factually recorded, inter alia, that following the applicant's visit to the hospital that she would not be coming into work over the next couple of days and would let them know later in the week what was happening.

8. Before coming to the above conclusions the tribunal also considered a number of further matters, which the applicant gave in evidence, not as evidence of acts of discrimination in themselves, but which the applicant's representative contended were indicators, from an earlier period of the applicant's employment, which as stated in the judgement of the Court of Appeal in Anya –v- University of Oxford (20010 IRLR 381, "might demonstrate that an ostensibly fair minded decision was or equally was not affected by racial bias" (in this case sex bias by reason of the applicant's pregnancy). The applicant placed great emphasis on these matters in proof of her complaint, but the tribunal noted in its consideration that these matters were not set out in the Originating Application, nor in the statutory questionnaire or in the replies to particulars. Indeed, no attempt was made at the time of the earlier amendment to the Originating Application to include these matters, albeit the applicant at that time had full knowledge of the allegations. It was not until the opening of this application that the respondent was put on notice of these further matters upon which the applicant relied. The tribunal satisfied itself that the applicant relied on them as relevant indicators as seen in the judgement in the Anya case and not acts of discrimination in themselves, the subject matter of this application, and that the respondent was given sufficient notice of the precise allegations, to be made in the course of the hearing, and sufficient time to respond and deal with same – before it allowed the applicant to give evidence of them.
9. The applicant, in essence, referred to three main allegations:

(1) Firstly, she noted that there was an entry in the daybook made by Mrs Smyth on 3 October 1996 for the notice of all senior staff which stated: "Due to Coleen Macauley being pregnant make sure all health and safety procedures is carried out and she does not lift or attempt to lift any heavy clients". The applicant stated at that time she did not know she was pregnant and did not know before 19 October 1996, when she did a pregnancy test at home and her pregnancy had only been confirmed by her doctor on a visit to him on 23 October 1996 – after which she had told Mrs Smyth of her pregnancy. She therefore contended that the entry could not have been written by Mrs Smyth on 3 October 1996, and that the entry had been falsified at some later stage in order to be able to fend of a complaint of unlawful discrimination by the applicant. The significance of the entry and particular reliance on it by the applicant only became apparent at the opening of the application, before the tribunal. The relevant entry had been properly discovered by the respondent though the copy had unfortunately not included the surrounding entries. Issues arose as to the sequence of entries and whether the date was the 3^rd October or 31^st October. It was only at the instigation of the tribunal that the original daybook was found. Given that copies of the relevant entries from the book had been previously discovered, without objection, the tribunal attached no significance to the fact that, initially, the actual book could not be found and was subsequently found stored at Moylinney. Indeed it was not until the later production of the book that it was able to be confirmed that the entry was placed amongst other entries for the said date of 3 October 1996. The applicant's medical records from her General Practitioner, on his confirmation of her pregnancy on 23 October 1996, stated that the applicant's last menstrual period was 21 September 1996 – though the applicant accepted that this would have been on the basis of what she had told him. She was adamant that she could not have been pregnant on 3 October 1996 and the date provided to her doctor was accurate. Indeed she maintained at the hearing that she and her husband had used contraception until about 11 October 1996 and she had, she believed, become pregnant when she was at her next door neighbour's wedding the next day 12 October 1996. She was on leave at the time the pregnancy was confirmed and the earliest she would have told Mrs Smyth at Moylinney of her pregnancy would have been after 23 October 1996. The tribunal noted that in a medical entry by the Jubilee Maternity Hospital on 5 December 1996 when the issue of contraception arose it indicated that the applicant had stated it had been discontinued – "? September 1996". This note was made within some few months of the events referred to in contrast to her firm assertion to the tribunal that she knew precisely when in October 1996 such contraception had been discontinued. The applicant maintained at the hearing that the pregnancy was unexpected and she and her husband had not been planning same. The tribunal found this difficult to reconcile with the evidence of Mrs Anderson, whose evidence it believed, that the applicant had told her prior to her annual leave in mid August that she was trying for a baby and asked what would be her entitlement in respect of benefits. Mrs Anderson was unable to tell her and said she would find out, which she subsequently did in December 1996 after attending a Union Course, but by which time the applicant had found out from the Citizens Advice Bureau. The tribunal was also satisfied that the applicant had given a similar indication to Mrs Smyth in or about August/September 1996.

Mrs Smyth was adamant that the entry was written at the time and not subsequently as alleged. At the time she first gave her evidence on this issue the original entry was not available and the precise date or sequence of dates in which the entry fell was not known from the copy discovered and it was suggested to her it could have been 31^st October 1996, rather than the 3^rd October 1996. However she was quite clear the date could not be 31^st October 1996 – albeit it would have been after the doctor had confirmed the pregnancy. She said that she believed she was told by the applicant, at or about the end of September 1996 that the applicant was pregnant. She was clear in her mind it was at that time because the chat in Moylinney was that the applicant had become pregnant on the night of the wedding of Joanne Logan, a member of staff, and that wedding was at the end of September (in fact, it was the 21^st September 1996). The original book, when subsequently produced showed clearly the date was 3^rd October 1996. Mrs Smyth said she made the entry soon after she was told of the pregnancy by the applicant.

The tribunal had some serious concerns about this matter and particularly given the date that had been provided by the applicant to her doctor as to the date of her last menstrual period. If this was a falsified entry as alleged it clearly would have had considerable significance, not least with regard to the evidence of Mrs Smyth in relation to what happened at the meeting in March 1997 and the circumstances in which the applicant's employment came to be terminated. However the tribunal was not satisfied that the applicant had not been trying for a baby prior to 12 October 1996 as she suggested. Having observed the applicant give evidence it was satisfied that if the applicant believed she had become pregnant at Ms Logan's wedding she would have discussed it with other staff. Mrs Anderson was quite clear that when she returned to the Unit after leave on 14 October 1996 that there was general talk in the Unit of the applicant's pregnancy. The tribunal in these circumstances was not prepared to accept that Mrs Smyth had made a false entry in the day book and accepted at that time she had been told of the applicant's pregnancy by the applicant. The tribunal was impressed by Mrs Smyth's refusal to accept the initial suggestion the date was 31^st October 1996, which proved to be wrong.

(2) The applicant secondly drew attention to certain records of the respondent in relation to difficulties arising from the morning sickness suffered by the applicant. The tribunal was satisfied that the applicant had considerable difficulties with morning sickness at the outset of her pregnancy and in particular carrying out her full duties at the start of the early shift. The tribunal was satisfied that the respondent, and in particular the management of Moylinney, Mrs Smyth, the Manager and Mrs Naomi West the Senior Care Assistant who was the applicant's immediate line manger, were not unsympathetic to the problems faced by the applicant due to her morning sickness. The tribunal was satisfied that due to her sickness the applicant had not been, in the opening months of her pregnancy, available to carry out some of her duties as she was being sick in the toilets and had on occasions to take time out to have tea and toast to allow her to recover. All members of staff in the tribunal's view, including Mrs Smyth and Mrs West, were sympathetic to the applicant. However some members of staff, given the increased pressure they were under due to the applicant's absences, made informal complaints to Mrs West/Mrs Smyth. The tribunal accepted that there appeared to be resentment building up that the applicant was taking advantage of the situation to avoid duties and spend longer than was necessary in the tea room. The tribunal was satisfied that given their understanding of the applicant's difficulties Mrs Smyth/Mrs West, after making a record of the matter on 3 November 1996 and again on 10 January 1997, dealt with the matter as a normal management problem by reminding the staff of the applicant's problems and the need for sympathy and understanding and by discreet observation to ensure that the applicant was not taking advantage of the situation. It appears that her sickness was likely to be a difficulty for the applicant, whatever shift she was on, and a change of rota as suggested in the records was not likely to ease the situation. There is no suggestion that it continued to be a problem and indeed, as stated previously, Mrs Smyth was content to allow the applicant to do additional hours to increase her rate of maternity benefit. The tribunal was not prepared to draw, from the foregoing, any inference of sex bias.

(3) The applicant raised one further matter to support her said complaint. This related to her duties in relation to the care of a client of Moylinney, Mrs Bradford, who was elderly but immobile and therefore required two people to lift her. At a supervisor session with the applicant on 3 November 1996 Mrs West, in a note signed by the applicant, had recorded, inter alia, that given the applicant's pregnancy she was not to carry out any heavy lifting duties on her own without assistance of another member of staff. The tribunal was satisfied that at the end of December 1996 the applicant complained to Mrs Smyth that she was expected to toilet Mrs Bradford without assistance. There was some dispute, in the course of the hearing, as to what the applicant was expected to do and Mrs West maintained that at no time was the applicant expected to toilet Mrs Bradford on her own, but merely to do her personal hygiene, such as washing and changing her incontinence pad but which did not involve heavy lifting. Mrs West said, one of the reasons for the session on 3^rd November 1996 was to make clear to the applicant she was not to carry out any heavy lifting.

The tribunal is satisfied that although the applicant initially complained to Mrs Smyth about the duties she was expected to perform with regard to Mrs Bradford that the complaint was in fact dealt with in a discussion between Mrs West and the applicant. The tribunal accepts that the applicant complained about what duties she was required to do in relation to Mrs Bradford. Whatever the precise nature of the complaint, the tribunal noted that the matter was able to be easily resolved with both parties accepting that given her pregnancy the applicant could not be required to do any duties involving lifting of Mrs Bradford. In the tribunal's view this was a typical sort of problem which can arise involving a pregnant employee and which requires to be resolved by any management. The problem was able, by discussion, to be resolved to the applicant's satisfaction and again, in the tribunal's view, illustrates the continuing understanding of the management to the applicant's pregnancy. The tribunal is satisfied, if this had been a matter of real substance, the applicant would have complained to Mrs Anderson, who would have been quick to take action; and also it would have been raised in the pleadings prior to the opening of the complaint before the tribunal. The tribunal also noted that, unlike the issue of the absence from duties, this matter was not considered sufficiently serious or of note for any record to have been kept of the complaint or its resolution. Again the tribunal was not prepared to draw, from the foregoing any inference of sex bias.

(4) The tribunal was therefore not persuaded in light of the foregoing that any of the said matters were such as to persuade it to come to the conclusion that the actions of the respondent and in particular of Mrs Smyth, but also Mrs West, were affected by sex bias on account of the applicant's pregnancy.

10. The tribunal in considering the evidence in this matter also noted that in the medical evidence presented by her to the tribunal there was no reference to any allegation that she felt her medical problems had been brought about because she had been unlawfully discriminated against by her employer. Indeed in a report dated 22 February 1999, Dr Ryan (SHO to Dr Mulholland, Consultant Psychiatrist) stated that "she appears to have been frustrated by leaving her work as a care assistant to raise her family". In a report dated 25 February 1998 Dr O'Donnell Consultant Psychiatrist recorded "She went to work in retail and continued in this until two years ago when she became a care assistant with the elderly. However, she had to give this up when she became pregnant."
11. The tribunal were therefore satisfied that the respondent's decision to terminate the applicant's contract of employment was not related in any way to her pregnancy but solely because Mrs Ferguson had not returned to work, having resigned on grounds of ill health. The tribunal is further satisfied that by replacing Mrs Ferguson by Ms Taylor that was not related to the applicant's pregnancy. Ms Taylor was properly appointed to the position having been placed, as envisaged in the advertisement, following the interviews in January 1997 on a waiting list to fill subsequent vacancies. If the applicant had not, as she accepted in evidence, performed badly at the said interviews and had been placed on the waiting list the tribunal is of the firm belief she would have been in a position to be considered for the said position.
12. In the circumstances the tribunal is not satisfied the applicant has proved her claim that she has been unlawfully discriminated against contrary to the Sex Discrimination (NI) Order 1976 and it is therefore dismissed.

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Date and place of hearing: 2-3 July 2001, 28 August 2001, 28 September 2001,

4-5 October 2001, 7-8 November 2001, Belfast

Date decision recorded in register and issued to parties: 27 March 2002