The adjudicating officer, Kevin Baneham, wrote that health services provider St John of God had denied Ann Doherty access to work and full pay "for no lawful reason" and that in the circumstances, the redress had to be “proportionate, dissuasive and effective”.
Ann Doherty’s complaint under the Employment Equality Act against St John of God Services, alleging she was discriminated against by being refused permission to work from home during the pandemic, was upheld in a decision published today by the Workplace Relations Commission.
She said she was working as an employment support instructor in St John of God’s day services in Celbridge, Co Kildare, when the service “went into lockdown” because of the Covid-19 pandemic on March 13, 2020.
Her supervisor, Des Balmer, told her that her pre-booked annual leave for that day and the following week was “not being approved” but that she could take parental leave.
Having returned from maternity leave in October 2019, she said she was pregnant again at this time.
“This was a huge time with employment services as many service users were still in work,” she said, adding that she could have continued to provide support by phone and online to her clients – 50pc-60pc of whom had jobs in essential services like retail and nursing homes, she said.
Although a role in residential services was suggested, Ms Doherty said because of a false accusation made against her while working in a residential care setting in 2016 she felt she “could no longer do a role involving intimate care”.
Ms Doherty said she was not placed on layoff and was “not offered the facility of working from home”.
She said in a conversation with her supervisor, Mr Balmer, she was told “if she could could not work from home, her only option was to take sick leave”.
But the complainant said other staff in her department were being allowed to work from home.
Two of them were “single women who did not have the same childcare needs” and a third was a male colleague with teenage children, she said in her evidence.
Ms Doherty said even after sending in her sick cert she was asked to participate in Zoom calls, attend to phone calls and text messages, and contact other staff.
She said she did not want to continue to carry out work tasks while on sick leave and raised this with her supervisor – but that Mr Balmer “did not want to hear about it”.
“Mr Balmer was dismissive and said that it was not possible for people to work from home,” she said.
After this she took ill, with stress and upset a factor, and had to be hospitalised, she said.
In July 2020 a colleague contacted her about coming back to work, and she said she would be in a position to return in August when her first child’s creche reopened.
She said she had understood she would be working from home but was happy to work in the first location suggested as the site facilitated social distancing.
But then she received further contact to say she was being transferred to a more public-facing role at a location in Maynooth, Co Kildare.
“You [do] not transfer someone out who is 30 weeks’ pregnant during a pandemic,” Ms Doherty said, adding that it was “apparent” St John of God “did not want her back”.
Because she had been given medical advice to “cocoon”, she refused to attend a meeting with the HR manager and Mr Balmer about going back to work, she said, adding that she was then referred for an occupational health assessment.
She felt her managers were trying to “railroad” her into working in a setting where she would have to provide intimate care, against her wishes.
Ms Doherty said she felt “cheated out of the job she really loved” in employment services and that her confidence was “shattered”.
St John of God Services, which was represented at hearing by Ibec employer relations executive Eoin Haverty, denied any discrimination.
Mr Haverty submitted that its day services were shut down during the pandemic and staff were redeployed according to their underlying health conditions, childcare duties and other circumstances.
This was in line with HSE policy, he said.
“As the complainant was deemed not fit for work, she could not be cocooning as this required her to be fit for work… she could not be cocooning and on sick leave at the same time,” he submitted.
HR manager Jenny Smith gave evidence that although day services closed down, staff “maintained support to clients” and staff were expected to “work out arrangements with their manager”.
Asked in cross-examination by the complainant why her circumstances were not considered, Ms Smith said “everyone who raised concerns was considered on an individual basis” – and that she was not aware of Ms Doherty “raising an issue”.
Ms Smith added that Ms Doherty had “never said that she could return to work”.
Ms Doherty said she had made such a request “several times”.
The adjudicating officer, Mr Baneham, noted that there were conflicts in evidence between the complainant’s testimony and the account of Des Balmer, the day services co-ordinator.
He invited St John of God to have him give sworn evidence, but Mr Balmer did not testify.
“It was relayed on Mr Balmer’s behalf that he had suggested to the complainant in March 2020 that she seek guidance from a GP and not that she should go on sick leave,” Mr Baneham wrote.
In his decision, Mr Baneham found that Ms Doherty “should have been allowed to work from home and be on full pay from March to August 2020,” and was at a loss for half her pay for six months.
“The effects of discrimination go far beyond any amount of financial loss. I note that the complainant was particularly vulnerable at this time, as someone who was pregnant and with a young child during a pandemic,” Mr Baneham wrote.
“The complainant was fully committed to the mission and to the clients of the respondent, but the respondent, in the midst of a pandemic, knowing of her pregnancy and childcare needs, denied her access to work and full pay for no lawful reason when the same facility was afforded to others,” he added.
Mr Baneham wrote that in the circumstances, the redress had to be “proportionate, dissuasive and effective” and ordered St John of God to pay her €45,000 in compensation.