Industrial Tribunals Northern Ireland Decisions

 


Quinn v Craigavon Area Hospital Group Trust (Sex Discrimination) [2002] NIIT 8_01 (17 May 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 8/01

APPLICANT: Dr Janice Aileen Quinn

RESPONDENT: Craigavon Area Hospital Group Trust

DECISION

The unanimous finding of the Tribunal is that the respondent unlawfully discriminated against the applicant on the grounds of her sex. The Tribunal orders the respondent to pay to the applicant by way of compensation the sum of £3,841.40.

Appearances:

The applicant was represented by Ms M Higgins, Barrister-at-law, instructed by Copeland McCaffrey, Solicitors

The respondent was represented by Mr T Bolton, Solicitor of Tughan & Co, Solicitors

1. At the outset of the proceedings the applicant sought to amend the Originating Application to set out that "her claim was a claim of direct discrimination on the grounds of the way she was treated during her pregnancy and/or maternity leave and in particular in the way that she was treated in relation to a pregnancy related illness, which occurred at the end of her maternity leave". Ms Higgins confirmed that in seeking the said amendment, of which advance notice had been given to the respondent's solicitors, the applicant relied on the facts as already set out in the Originating Application.

Mr Bolton indicated that he had no objection to the said application and in the circumstances the Tribunal allowed the said application to amend the application as set out above.

2. The reasons are given in extended form.
3. The Tribunal found the following facts:-

(i) The applicant qualified as a doctor in July 1990. Since on or about 27 July 1998 the applicant was employed by the respondent as a Staff Grade 1 Geriatrician. It had originally been intended that she would take up the said post on 6 July 1998 but in fact had not taken up her post until 27 July 1998, having provided annual leave cover as a Locum from 6 July 1998 until 28 July 1998 for Dr P M McCaffrey, Consultant Physician in Geriatric Medicine, who was her immediate Line Manager and supervisor in her new post.

(ii) In so far as material to this application, under the Applicant's written terms of employment as set out in the Standard Whiteley Council terms which applied to this contract it is provided, inter alia, that "an employee must inform her employing authority of the date she proposes to return from her maternity leave in writing at least 21 days before that date". Under the respondent's Maternity Leave Procedure 'Employee Guidelines' it is stated inter alia:-

Step 1 - Employee must advise Head of Department in writing at least 21 days before the commencement of maternity leave.

Step 2 - Completed Maternity Leave Application Form and MB1 Certificate stating Expected Date of Confinement must be sent to the Human Resources Department.

Step 3 - The Human Resources Department will issue letter approving Maternity Leave and advising of entitlements.

Step 4 - Where Employee wishes to return to work after maternity leave she must give at least 21 days written notice to her Head of Department before the date she proposes to return.

(iii) By notice dated 24 December 1999 the applicant had made an application for maternity leave, which had been countersigned by Dr McCaffrey on 3 January 2000 and was received by the Human Resources Department of the respondent on 5 January 2000. This form indicated, inter alia, that her expected date of confinement was 8 May 2000 and that an early application had been made to facilitate the arrangement of locum cover and that the relevant MB1 Certificate would be forwarded when issued. It also stated, inter alia, the intended date of commencement of maternity leave was 7 May 2000 and the applicant intended to return to work following maternity leave. The form, signed by the applicant, also stated that she understood she had to give at least 21 days written notice of the date of actual return.

(iv) On 29 March 2000 the applicant completed a form entitled 'Notification of Intended Annual and Study Leave for SHOs and Registrars in Medicine'. She set out therein various periods of annual leave and statutory days she wished to take from 14 April 2000 until 2 May 2000 and also stated "Maternity leave 8 May 2000 to 10  September 2000". She wished to register that although she was going off on annual leave on 14 April 2000 her Maternity Leave was not starting until 8 May  2000. She appreciated that arrangements for locum cover would have to be made for the said period. The said periods of absence had been countersigned as approved by her Line Manager including Dr McCaffrey whose responsibility it was to arrange for such cover.

The applicant provided the said MB1 Maternity Certificate dated 11 February 2000 which stated the applicant could expect to have her baby in the week that includes 8 May 2000.

By letter dated 24 February 2000 the respondent, inter alia, stated her Maternity Leave would commence on 7 May 2000 and expire finally on 5 May 2001. The letter also pointed out that in order to exercise her right to return to work she required to give her Manager 21 days notice in writing of her actual date of return.

(v) The applicant was entitled under the Maternity and Parental Leave etc Regulations (NI) 1999 which came into operation on 15 December 1999 to both Ordinary Maternity Leave ('OML') but also Additional Maternity Leave ('AML'). The applicant at no time intended to avail herself of her entitlement to AML as it was unpaid and she was the major wage earner in her household. The relevant 18 week period of OML from 8 May 2000 would therefore normally have expired on 11 September 2000.

(vi)(a) The applicant shortly after the birth of her child, a boy, on 16 May 2000 became ill with a pelvic infection and required to be kept in hospital. Following release from hospital she became generally debilitated and suffered from other problems including lack of energy and abdominal pains. At a clinic on 8 August 2000 the applicant voiced her concerns to her GP about her fitness to return to her employment at the end of her OML on 11 September 2000, which, as stated before, had always been her intention. Her GP advised her to take four weeks sick leave from the end of her OML and that he would provide her with the relevant medical certificate for the said four week period on 11 September 2000. The applicant was conscious that if she wished to give the respondent the relevant 21 days' notice she would require to give notice to Dr McCaffrey, her Line Manager, in the week commencing 21 August 2000. She intended to phone Dr McCaffrey to tell her that she would be taking four weeks sick leave from 11 September 2000. Dr McCaffrey at that time worked on three sites and was therefore somewhat difficult to contact. However on a Thursday she apparently was in a clinic where she could take private calls from someone like the applicant. The applicant intended to call her at the clinic on Thursday 24 August 2000 but she did not do so as she met Dr McCaffrey, by chance, in the car park of a shopping centre on Wednesday 23 August 2000.

(b) Dr McCaffrey did not give evidence to the Tribunal. No explanation was given to the Tribunal for her absence, albeit the Tribunal considered in light of the terms of the applicant's Originating Application and her evidence that Dr McCaffrey would be a witness whom the respondent might reasonably be expected to call if that person's evidence would be favourable to it. The applicant contended in evidence that at the said meeting she had informed Dr McCaffrey how ill she had been, of which her Line Manager had not been aware. She informed Dr McCaffrey by reason of her illness she was planning to take four weeks sick leave which would commence on 11 September 2000, the date when she had been expected to return to work as aforesaid and she would forward her the medical certificate when she received it from her doctor; along with a letter in order to put her instructions in writing as she knew Human Resources liked to have things in writing. She said that Dr McCaffrey had not advised her to take any further steps and told the applicant that she thought that Human Resources would accept that as the applicant had obviously been very seriously ill. The applicant maintained that her conversation, albeit in the car park, was proper notice of her return to work.

The Tribunal admitted in evidence, despite objections from the applicant, a letter dated 25 May 2001 from Dr McCaffrey to Mrs C Dewdney, the respondent's Employee Relations Officer (who also did not give evidence to the Tribunal but attended the hearing for a period). The Tribunal in admitting same warned the respondent as to the weight, which could be given to such a letter. In addition the respondent sought to admit in evidence a note written by Mrs Dewdney, which purported to state that Dr McCaffrey did not regard the said conversation she had with the applicant on 23 August 2000 in the supermarket as official notification. The Tribunal admitted same but again warned the respondent as to the weight that could be given to same. In considering the aforesaid matters and the failure of the respondent to call in particular Dr McCaffrey but also Mrs Dewdney in the above circumstances, the Tribunal was of the opinion it was entitled to infer that their evidence would not have helped the respondent's case. As was stated in Lynch v Minstry of Defence (1983) (NI) 216 by Hutton j at page 222(f) – "if the jury draw that inference then they may properly take it into account against the party in question for the purposes namely (a) in deciding whether to accept any particular evidence, which has in fact been given either for or against that party and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken".

Having regard to the aforesaid dicta the Tribunal was satisfied that the letter by Dr McCaffrey confirmed, in essence, the evidence of the applicant; but in so far as there were differences in detail the evidence of the applicant as set out above should be preferred. In addition in particlar the Tribunal was satisfied that although the meeting was by chance in the supermarket that it was notice to the respondent's relevant Line Manager of her return to work (albeit it was not in writing to which further reference shall be made). Further such notice was accepted by Dr McCaffrey, the relevant Line Manager, to whom any said notice had to be given. The Tribunal was confirmed in this view, again applying the said dicta, by the fact that Dr Anderson, who had been providing cover for the applicant on a locum basis from 1 July 2000 until 8 September 2000, had her said contract extended from 8 September 2000 to 30 September 2000, under a contract issued on 4 September 2000 on foot of a letter of the same date sent by Mrs Walker, the respondent's Human Resources Manager. Mrs Walker, in her evidence, accepted that whilst her Department would have sent out the formal contract, the arrangements for extension of such locum cover would have been the responsibility of Dr McCaffrey, who would have notified her Department some days previously of the above extension. The Tribunal was of the view that Dr McCaffrey would not have done so unless she had accepted that what she had been told was official notification by the applicant. As to what precisely occurred the evidence of Dr McCaffrey was essential in the view of the Tribunal, it could not be explained by witnesses called by the respondent, such as Mrs Walker, who had no direct knowledge and/or had not interviewed Dr McCaffrey about what had occurred and based their understanding on the interpretation of the documents which they had examined in relation to the case. Similarly Ms Ann Quinn, an Assistant Employee Relations Officer, who was called to give evidence by the respondent and who up to early 2000 had particular responsibility for the maternity leave procedures, suggested, in evidence, it was her understanding that Dr McCaffrey had sought the extension of Dr Anderson's locum contract "to cover the applicant's sick leave", whereas it had been earlier suggested by Mrs Walker that it had been extended to cover the fact the applicant was on AML. If that had been so it might have been expected to be continued for a much longer period and certainly beyond 30 September 2000. Ms Quinn's reference 'to sick leave', in the Tribunal's view, confirmed its views as set out above that Dr McCaffrey had accepted and acted on the notice given by the applicant and she knew the applicant was going on sick leave for four weeks at the conclusion of her OML and would be entitled to full occupational sick pay. It did not accept Ms Quinn's attempt to try to suggest her reference to sick leave was a reference to a period of leave when only statutory sick pay would be payable as the applicant remained, in the absence of notice, on AML.

(vii) The applicant by letter dated 13 September 2000 sent a letter to Dr McCaffrey enclosing her sick line for four weeks from 11 September 2000 and stating her intention to return to work on 9 October 2000. In the letter she confirmed she had left a message at Human Resources the previous week explaining that she had spoken to Dr McCaffrey a fortnight earlier regarding her plans. Mrs Walker, in her evidence, indicated that in an investigation by Mrs Dewdney (who as stated above did not give evidence) and carried out in or about May 2001 following the applicant's presentation of her Originating Application to the Tribunal on 14 December 2000, did not reveal any record of the said call nor did any relevant personnel recall same. The Tribunal having seen a copy of the applicant's telephone bill was satisfied she made her said call and further left a message as stated. The Tribunal was not surprised to learn that such an investigation carried out so long after the event did not reveal any record or memory of the applicant's call.

(viii) The applicant expected that, having given the notice as aforesaid, she would receive sick pay from the respondent which under the respondent's sickness and absenteeism policy would have entitled her to full pay for the period of her absence from 11 September 2000. The applicant on receipt of her September pay on or about 22 September 2000 found that she had received less than she expected and on speaking to Ms Hooper in Salaries and Wages was told that since the respondent had not received three weeks notice in writing of her return to work at the end of her maternity leave it had therefore been assumed she was not returning to work and was on AML. Consequently she was only entitled to half pay for the period of her OML to 11 September 2000 and thereafter she was on unpaid leave and not entitled to full pay under the sickness and absenteeism policy. Ms Hooper indicated that during her period of AML she would be entitled merely to statutory sick pay which would be payable when she received her pay in October. Despite the applicant's protests the respondent maintained that her pay for September must stand as she had not given the written notice as required in her contract. The applicant in addition to contacting the Human Resources Department/Salaries and Wages Department also contacted Dr McCaffrey over the weekend of 23/24 September 2000. The Tribunal accepts the applicant's evidence that Dr McCaffrey was alarmed the applicant had not received her full pay and could not understand how the situation had arisen and she agreed to speak to the Human Resources and did so, but without result. The applicant received statutory sick pay for the period from 11 September 2000 until her return to work on 9 October 2000. She successfully resumed her post at that time.

(ix) Under the respondent's sickness and absenteeism policy an employee who is unable to work is required, inter alia, to notify their manager as soon as possible on the first day of absence in accordance with the internal policy of their Directorate/Department. The notification, further should include information as to the reason for absence and the anticipated duration if known. Where the manager is not available, the employee must make contact with whoever is in charge. Where the employee is absent for four or more days a self certificate or medical certificate from a GP or hospital should be submitted. Mrs Walker in her evidence confirmed that such initial notification to the manager does not require to be in writing and, provided the medical certificate from the Doctor was provided to the respondent within a reasonable period of its receipt, sick pay under the relevant procedures would be payable for the full period of absence provided for in the Certificate. Mrs Walker acknowledged that the applicant's medical certificate for the four week period from 11 September 2000 would have been received for the purposes of the said sickness policy within such a reasonable period but maintained that in the absence of the said notice in writing the applicant was not entitled to be paid pursuant to the said sickness policy as at the material time in the absence of such notice the applicant was on AML.

(x) The parties were in agreement that the total loss of earnings by the applicant for the period from 11 September 2000 to 8 October 2000 was £1889.49.

(xi) The applicant, when she realised she was not going to be paid the said full occupational sick pay but only the statutory sick pay, for the period of her sick absence, was very upset and distressed at the way she had been treated. She believed if she had been a man and had not been on maternity leave as aforesaid she would have received the full occupational sick pay. She was tearful on occasion as she tried to persuade the respondent to change its mind. Her upset was compounded by the fact that the applicant had certain financial pressures as she was the major wage earner and had expected to be able to pay certain bills from her September earnings but in the circumstances was unable to do.

4. (a) The Tribunal is satisfied that under the said regulations and in particular regulation 11 that an employee who is entitled to AML cannot return at the end of the18 weeks OML period without giving 21 days notice. It is further satisfied that if such an employee fails to give such notice the assumption is that she will return at the end of the AML period to which she is entitled. Thus if the applicant wished to return at the end of her OML or indeed before the end of her AML she was required under the regulations to given the said 21 day notice. Under the regulations such notice does not require, in the Tribunal's opinion, to be in writing. Under the applicant's contract, as aforesaid, any such notice required to be given in writing. The applicant contended that by stating her period of maternity leave on the document headed 'Notification of Intended Annual and Study Leave for SHOs and Registrars in Medicine dated 29 March 2000 she had given such notice in writing. The Tribunal did not accept that the said document could be regarded as notice in writing for the purposes of the said contractual requirement. The Tribunal accepted the respondent's contention that, at best, it gave some indication of what the applicant intended or hoped to do but could not be regarded as formal notice. The Tribunal was of the view that what may have been intended or hoped prior to the birth can and often does alter subsequent to the birth, due, for example, to changes in personal circumstances but also difficulties and complications following the birth. In such circumstances it would have been wrong to accept such notifications as the said written Notice.

(b) (i) There is therefore a potential conflict between the applicant's contract which required any such notice to be given in writing and the said 1999 regulations which do not require any such notice to be in writing. If such notice required to be in writing such notice was not given until her letter of 13 September 2000 to Dr McCaffrey, enclosing the medical certificate and giving a return to work date of 9 October 2000. She would thus have been on AML until 9 October 2000 from 11 September 2000 and only entitled to statutory sick pay during the said period of absence.

(ii) Regulation 21 of the 1999 regulations states as follows:-

"(1) This regulation applies where an employee is entitled to

(a) ordinary maternity leave

(b) additional maternity leave

(c) ………

referred to in paragraph (2) as a "statutory right") and also to a right which corresponds to that right and which arises under the employee's contract of employment or otherwise.

(2) In a case where this regulation applies –

(a) the employee may not exercise the statutory right and that corresponding right separately but may, in taking the leave for which the two rights provide, take advantage of whatever right is, in any particular respect, the more favourable, and

(b) the provisions of the 1996 Order and of these Regulations relating to the statutory right apply, subject to any modifications necessary to give affect to any more favourable contractual terms, to the exercise of the composite right described in sub-paragraph (c) as they apply to the exercise of the statutory right."

Whilst the applicant had both a contractual right and a statutory right to maternity leave she was not entitled to exercise both but was entitled to exercise her rights in a way most favourable to her. This said composite right under the said regulation includes, in the Tribunal's view, having regard to its terms, provisions as to notice. Thus, the applicant was only required to give oral notice of her return to work and did not require to give notice in writing. Whilst the Tribunal could understand that from an administrative point of view there might be advantages to the respondent in receiving such notice in writing in the Tribunal's view it was necessary for the respondent to make provision for accepting such notice orally and to adopt procedures and practices to enable that to occur.

(iii) The Tribunal was satisfied that when the applicant spoke to Dr McCaffrey as set out above in the supermarket car park on 23 August 2000 she gave, in doing so, notice that she was ending her maternity leave and returning to work. In the absence of evidence from Dr McCaffrey the Tribunal accepted as aforesaid that Dr McCaffrey had accepted the notice, albeit it had been given in a somewhat informal setting. Under the said composite right the applicant in order to bring her maternity leave to an end had to give a period of 21 days notice. By giving the notice on 23 August 2000 the applicant did not give sufficient notice to enable her return to work to coincide with the end of her OML. She was in fact some two days short to do so. Thus her return to work was some 2 days into her AML. To end a period of maternity leave and return to work does not require an employee to physically return on the notified day, subject to the relevant notice having been given. (See further (Cress v Royal London Mutual Insurance Society Limited (1998) IRLR 245, Halfpenny v IGE Medical Systems Ltd (2001) ICR 73).

(iv) The applicant, having given notice as aforesaid to Dr McCaffrey informed her that she would be taking sick leave at the end of her maternity leave. Indeed Dr McCaffrey had arranged for Dr Anderson's locum contract to be extended to cover her period of sick absence. In these circumstances the applicant was required to be treated the same as all other employees who were on sick leave and was entitled to receive the same sick pay to which all other employees were entitled to. The applicant having returned to work as aforesaid had informed her employer, as she was required to do under the Sickness Policy, of her sick absence of the reasons for same and the anticipated duration. Such information did not require to be in writing. In addition to informing Dr McCaffrey, the applicant had on 7 September 2000 left a message in the Human Resources Department. Further by her letter of 14 September 2000 to Dr McCaffrey the applicant had provided, as required under the policy, the relevant medical certificate from her doctor. However having done so the respondent refused to pay the applicant her full occupational sick pay under the policy but merely her statutory sick pay and therefore suffered financial loss. The Tribunal has calculated that the said loss to be in the sum of £1,710.00 (having taken account of the fact that she remained on AML for 11 and 12 September 2000 and having given notice of her return to work on 23 August 2000.)

(v) The Tribunal was satisfied that if any male employee had similarly informed the respondent in the course of his employment of his sick absence and similarly provided a medical certificate that he would have been paid the full occupational sick pay under the said policy and not statutory sick pay. In the Tribunal's view the applicant had been in the circumstances less favourably treated on the grounds of her sex. She was so treated because she was a woman who had been pregnant and on maternity leave and, albeit she had properly returned to work, the respondent was refusing to pay her the sick pay to which she was entitled and which in similar circumstances would have been paid to a man. The Tribunal was therefore satisfied the applicant had been unlawfully discriminated against on the grounds of her sex.

5. As a result of the said unlawful discrimination the Applicant suffered financial loss in the sum of £1,710.00. Further the applicant is entitled to an award for injury to her feelings. The Tribunal, mindful that the applicant was able to successfully resume her job in October 2000 and that her period of acute distress and upset was for a relatively short period in or about September/October 2000, awards the applicant the sum of £1,750.00 in respect of injury to her feelings. The Tribunal did not consider, as sought by Ms Higgins, that any award in respect of aggravated damages was appropriate. The Tribunal was further not satisfied that it was necessary or appropriate, given the facts of this case, to make any recommendation as also sought by Ms Higgins. Any such recommendation can only be for the purpose of obviating or reducing the adverse effect on the applicant of the discrimination and must not be general in nature. There was no suggestion in evidence that the applicant has suffered similar ongoing difficulties with the respondent in the course of her employment.
6. For the purposes of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 ('The Regulations') the date of discrimination is 22 September 2000, the calculation date is 22 June 2002 and the mid point date is 22 August 2001. The rate of interest is 8% per annum.
7. The Tribunal awards compensation as follows:

(a) Injury to feeling - £1,750.00

Interest at 8% per annum from

22 September 2000 to 22 July 2002

(668 days) - £ 256.22

(b) Financial loss - £1,710.00

Interest at 8% per annum from

6 August 2001 to 22 July 2002-07-22

(334 days) - £ 125.18

Total Compensatory Award £3,841.40

Chairman:

Date and place of hearing: 16 and 17 May 2002, Belfast

Date decision recorded in register and issued to parties: