Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 84/03

APPLICANT: Kirsten Garrett

RESPONDENTS: 1. Police Service for Northern Ireland

2. Chief Constable of Police Service of Northern Ireland

DECISION

The unanimous decision of the tribunal is that the applicant was unlawfully discriminated against on the grounds of her sex. The tribunal orders the respondents to pay to the applicant a sum of £2,675.76 in compensation for injury to feelings.

Appearances:

The applicant was represented by Mr S. Ritchie, Barrister-at-Law, instructed by Babington & Croasdaile, Solicitors.

The respondents were represented by Ms N. Murnaghan, Barrister-at-Law, instructed by the Crown Solicitor.

1. In her originating application dated 23 December 2002 and filed 24 December 2002 the applicant claimed the respondents had discriminated against her on grounds of sex in failing to discount her absence from work when suffering from a post-natal illness. The respondents in their notice of appearance dated 5 February 2003 and filed on 10 February 2003 denied sex discrimination.
2. The issue before the tribunal was whether or not the respondents had discriminated against the applicant in the implementation of their Managing Attendance Policy by not treating her absence due to post-natal debility as maternity related because it was after the end of her period of maternity leave.
3. The following facts were not in dispute:
4. 1 The applicant, a police constable, joined the PSNI in November 1999.
5. 2 On 6 September 2001 she gave birth to her daughter.
6. 3 She took twelve weeks maternity leave from 13 August 2001 - 12 November 2001.
7. 4 She was off work from 13 November 2001 - 13 January 2002 with post natal illness and during this period she claimed and received sickness pay. She self certified the first week and thereafter sent in sick leave certificates dated 19 November 2001, 6 December 2001, 21 December 2001 and 1 January 2002. The certificates referred to post-natal debility and the one dated 21 December 2001 also indicated she was still breast feeding.
8. 5 She returned to work on 13 January 2002.
9. 6 In September 2002 she applied for the post of Constable in the Post Foundation Faculty. She felt her qualifications and experience fitted her for this post. She had a degree of Batchelor of Law and a Master's degree in Human Rights and experience in teaching and training. She wanted to further her career in this area. The hours and the location were convenient, particularly as she had a small child.
10. 7 On 18 October 2002 she was informed she had failed to satisfy the eligibility criteria because her absence on sick leave exceeded the permissible level.
11. 8 The applicant appealed on 1 November 2002.
12. 9 On 4 November 2002 the Appeals Panel considered her letter of 1 November 2002, her sickness record and the guidelines. Her appeal was rejected. It stated that the total days of absence not discounted was 62 and the reason her appeal was not accepted was she had provided no evidence of mitigating circumstances.
13. 10 The Police Occupational Maternity Scheme (Force Order No 81/2000) provides:

(i) Those entitled to force paid maternity leave will be paid for the first 3 months of maternity leave. This consists of 3 months' full pay.

(ii) Maternity leave can be taken commencing 6 months before the EDC and ending 9 months after the EDC.

(iii) All female officers will, where expected week of childbirth begins on or after 30 April 2000 be entitled (whether or not entitled to paid leave) to 18 weeks maternity leave.

Re Sickness:

(i) If an officer is sick before the commencement of maternity leave, she is entitled to sick pay and leave of absence in accordance with current Force Policy on sickness up until the date she would otherwise have commenced her intended maternity leave, the EDC or the date of childbirth whichever is earliest.

(ii) An officer who has commenced her maternity leave will not be entitled to sickness payments before her intended date of return to work.

(iii) If an officer is sick following maternity leave she is entitled to sick pay in respect of any illness or incapacity for duty in accordance with current Force Policy on sickness, until her return to work;

For the avoidance of doubt, the sick pay scheme shall no longer exclude any entitlement to sick leave in respect of any illness, injury or incapacity for duty which is solely or mainly due to pregnancy or childbirth or their after effects, in the period before the intended start of maternity leave or the period after the intended date of return to work.

A copy of this Force Order was sent to the applicant on 24 July 2001.

14. 11 Managing Attendance Policy (Force Order no 10/2001) provides:

Paragraph 9(2) Maternity related sickness will not be taken into consideration when determining eligibility for boards.

Paragraph 9(3) Officers whose attendance does not meet the required standard will not be eligible to apply for any board for a promotion or transfer to a specialist or other post.

Paragraph 9(4) All sickness absence, with the exception of maternity related sickness, will be taken into consideration in deciding whether any candidate is eligible for promotion or transfer. Where a candidate's record fails to meet the attendance criteria, mitigating circumstances will be taken into consideration.

15. 12 In her letter of appeal the applicant argued that she had had one period of "maternity related sickness" following the birth of her daughter and as "pregnancy related absence" this should have been disregarded; that Paragraph 9 of the Managing Attendance Policy encompassed both ante-natal and post-natal periods of sickness; that the purpose of the policy was to penalise those taking unnecessary periods of absence whereas she had been temporarily unfit as a direct result of the birth of her child; that she had therefore been discriminated against on grounds of her sex.

The respondents took the view that as the applicant's sick leave had occurred after her maternity leave had finished it should be treated like any other absence and on same basis as the absence of a male officer.

16. 13 The Guidelines for Deciding Appeals state clearly that pregnancy related absence will be discounted. It quotes paragraph 9(4) of the Managing Attendance Policy. It also states:

"In considering mitigating circumstances, the absence may be substantiated by medical evidence supplied by the appellant officer". "Form MC3 – Doctor's Statement – may not be sufficient as medical evidence for the purposes of any appeals process".

17. 14 The applicant in her letter of appeal said "I have been unable to furnish a letter from my GP although I have requested such a letter to confirm that I was unable to return to work due to post natal problems. I will forward this letter once I am in receipt of it". No letter was sent to the Appeal body.
18. 15 The Appeal body comprised Mrs Lindsay Balmer of Complaints & Discipline Section who acted as Chair, Inspector Patton from the Police Federation and Chief Inspector Barron from Recruitment Services. The appeal was by way of a paper hearing. The appeal panel had the applicant's letter of appeal, a computer print out showing the total number of days of

applicant's absence and details of her period of maternity leave. They did not have the medical certificates referring to post-natal debility. Provision of any additional material was the responsibility of the applicant. The appeal panel looked at the period of absence and the flow chart setting out the guidelines for dealing with appeals in relation to Paragraph 9 of the Managing Attendance Policy. After quoting paragraph 9(4) it poses 3 questions:

(i) Does the absence relate to an injury on duty accepted for pay purposes? If the answer is yes, the period is discounted.

(ii) Is the absence pregnancy related? If the answer is yes, the period is discounted.

(iii) Does the absence have mitigating circumstances worthy of special consideration? If the answer is yes, the period is discounted.

In relation to mitigating circumstances the panel are looking for something more than a certificate or letter confirming the period of absence and the reason e.g. a referral for further procedures. If the applicant had been referred to a psychiatrist for post natal depression, this would have been sufficient.

If the answer to all 3 questions is no, the appeal is refused.

The appeal panel took the view the applicant's 62 days absence were not pregnancy related because they were outside the period of maternity leave. They found no evidence of mitigating circumstances. Absences during pregnancy or maternity leave were discounted.

19. Having heard the evidence of the applicant and Mrs Balmer and considered the documents produced the tribunal found the following further facts:
20. 1 The applicant could have taken an additional 6 weeks maternity leave i.e. a total of 18 weeks and outside of this 9 months unpaid leave. The applicant said her financial position would not have permitted her to do the latter and she was not aware of the former. She accepted she should have checked. She did not approach Personnel for advice when she discovered she needed more time. The tribunal did not accept that depression prevented her from doing so.
21. 2 The applicant was on sickness leave duly certified as post-natal debility.
22. 3 The applicant did not provide a letter from her GP as her particular GP was absent on maternity leave and in any event she did not think it was necessary in view of her interpretation of paragraph 9(4) of the Managing Attendance Policy.
23. 4 The tribunal did not accept that the applicant suffered from post-natal depression or that doctors tended to refer to post-natal debility rather than post-natal depression because of the stigma attached to depression. Its view was that post-natal depression was a much more serious illness.
24. It was accepted by both Counsel that the Police Occupational Maternity Scheme complied with the amendments to the Employment Rights (Northern Ireland) Order 1996 and to the Maternity and Parental Leave Regulations (Northern Ireland) 1999 and was in fact more generous in that the length of additional maternity leave is 9 months after the expected date

of confinement rather than the statutory 29 weeks after childbirth. It was clear that the period of special protection lasted from the onset of pregnancy to the end of maternity leave.

The issue of pregnancy-related illness is difficult. On one hand, an illness that is linked to pregnancy is one that a man cannot have; on the other hand, an employer could argue that it cannot be forbidden to dismiss a woman who is off work on long term sick leave at any time because the illness has some link to pregnancy.

In Brown –v- Rentokil Ltd [1998] IRLR 445 the ECJ held that, pursuant to the Equal Treatment Directive, dismissal for absences due to incapacity to work resulting from pregnancy at any time from the beginning of pregnancy to the end of maternity leave was directly discriminatory. By analogy this applies to less favourable treatment. Also absences during this period cannot be taken into account when considering whether or not to dismiss a worker who has been on long term sick leave after the end of maternity leave. However, absences after maternity leave – even if the illness arose during pregnancy and persisted during maternity leave – can be taken into account under the same conditions as a man's absence through incapacity for work of the same duration. This approach was similar to that taken in Hertz –v- Aldi [1991] IRLR 31.

25. The tribunal considered the submissions of Counsel.
26. 1 Counsel for the respondents submitted that if the applicant had continued with her ordinary maternity leave to the full 18 weeks or taken an additional maternity leave period she would have continued to have been afforded protection. Instead she had classified herself as on sick leave and in order to receive the benefit of full sick pay as notionally having returned to work. This was incompatible with her claim she should have continued to be in a protected position during this period. The "protected" period can only last as long as the period of maternity leave and the applicant was not entitled to it while enjoying the benefits of being back at work on full sick pay. As her period of absence due to post-natal debility was after the expiry of the period of maternity leave chosen by her, the appeal panel was not entitled to treat this absence any differently from any other absence.
27. 2 Counsel for the applicant submitted that in this case the legislation and the authorities based thereon were not relevant. The applicant's case was that the respondents had failed to comply with their own Scheme. While an employer cannot be less generous than the legislation provides he can be more generous. The words of the Policy were clear and the applicant was entitled to benefit from them.

Paragraph 9(2) of the Managing Attendance Policy (see ante paragraph 3.11) states "Maternity related sickness will not be taken into consideration when determining eligibility for boards".

Paragraph 9(4) states "All sickness absence, with the exception of maternity related sickness, will be taken into consideration in deciding whether any candidate is eligible for promotion or transfer".

Counsel for the applicant pointed out that the phrase "maternity related sickness" was not qualified in any way – it did not say "during maternity leave" – and that it therefore covered the applicant's sick leave on post-natal debility.

28. 3 Counsel for the respondents submitted that this interpretation would mean that any illness which occurred months or years after which could be traced back to a female officer having had a baby would be protected and the ECJ had made it clear in Hertz -v- Aldi there had to be a cut-off period when a woman would no longer be protected and that would be at the end of her period of maternity leave. Also such an interpretation would operate to the detriment of male officers.
29. 4 Counsel for the applicant said the respondents must face the Policy as it is.
30. The tribunal also considered the Police Maternity Scheme (see ante paragraph 3.10) which provides that if an officer is sick following maternity leave she is entitled to normal sick pay until her return to work. The sick pay scheme no longer excludes any entitlement to sick leave in respect of any illness or incapacity solely or mainly due to pregnancy or childbirth or their after effects "in the period before the intended start of Maternity leave or the period after the intended date of return to work".

It would appear clear that under the Police Occupational Maternity Scheme entitlement to sick pay is outside the maternity leave period and the applicant could not claim sickness while on maternity leave.

The Guidelines for Appeal (see ante Paragraphs 3.13 and 3.15) which are an Appendix to the Managing Attendance Policy say "pregnancy related" absence will be discounted and the Appeal panel took the view that "pregnancy related" covered absences during pregnancy and maternity leave.

The tribunal found that there was a degree of confusion in the terminology used in the documents – pregnancy related, maternity related. While it could be said the applicant's post-natal debility was not "pregnancy related" in the sense she was no longer pregnant, it arose out of pregnancy and more particularly out of the birth of her child. "Maternity related" was wider and would cover pregnancy and childbirth and the after effects of either or both. The tribunal was satisfied that either term could cover post-natal debility. The question therefore was did the term "maternity related sickness" still cover the applicant who had ended her maternity leave and elected to claim ordinary sickness benefit in respect of her post-natal debility. By ending her maternity leave period she ended her protected period. Did this end her entitlement to have her absence while on sickness benefit for post-natal debility discounted or have the respondents extended the period by the wording in Paragraph 9(2) and (4)? The applicant's counsel has argued that the phrase "maternity related sickness" in Paragraph 9(2) and (4) of the respondents' Managing Attendance Policy must be regarded as "without qualification". In the view of the tribunal he is right. The wording is clear and the applicant is entitled to the benefit of it. It is part of the terms and conditions of her employment. Had it said "maternity related sickness during maternity leave" then the applicant's absence on sickness benefit would properly not have been discounted. It did not and therefore her absence on sickness due to post-natal debility should have been discounted in determining her eligibility for boards, promotion or transfer.

31. The tribunal therefore found that the respondents discriminated against the applicant in the implementation of Paragraph 9 of their Managing Attendance Policy in failing to discount her absence from work due to post-natal debility.
32. The applicant did not suffer any loss of income. The tribunal however accepts she lost the opportunity of a post which she wanted and award the sum of £2,250.00 in respect of injury to feelings. It took into account the guidance given by the Northern Ireland Court of Appeal in McConnell –v- Police Authority for Northern Ireland (1997) and the English Court of Appeal in Vento –v- Chief Constable of West Yorkshire Police [2003] IRLR 102. It was satisfied that the sex discrimination in this case did not fall into either the top or the middle band in seriousness or duration.
33. 1 For the purposes of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 the date of discrimination is 18 October 2002. The calculation date is 28 February 2005 and the mid point is 7 March 2005.
34. 2 Pursuant to 7(1) of the said Regulations the tribunal awards the following compensation:-

Injury to Feelings £2,250.00

Interest @ 8% per annum from 18 October 2002 – 28 February 2005 £ 425.76

TOTAL AWARD £2,675.76

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35. 3 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 26 and 27 January 2005, Belfast.

Date decision recorded in register and issued to parties: