A “particularly vulnerable” worker who was refused permission by her employer to work from home while pregnant during the first year of the Covid-19 pandemic has been awarded €45,000 in compensation.
The adjudicating officer, Kevin Baneham, wrote that St John of God Community Services 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 the healthcare provider - 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 Community Services in Celbridge, Co Kildare and pregnant with her second child when the service “went into lockdown” because of the Covid-19 pandemic on 13th March 2020.
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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.
Although a role in residential services was suggested, Ms Doherty said that 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 lay-off 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.
Ms Doherty said that 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.
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, initially at a site that facilitated social distancing, but 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 Community Services “did not want her back”.
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 Community 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.
Asked in cross-examination by the complainant why her circumstances were not considered, HR manager Jenny Smith said “everyone who raised concerns was considered on an individual basis” – and that she was not aware of Ms Doherty “raising an issue”.
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.
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 Community Services to pay her €45,000 in compensation.
Responding, Saint John of God Community Services said it “did its utmost” to protect all of its staff during the pandemic and offered redeployment and/or working from home opportunities where it was reasonably practicable for a frontline service. It would, it said, be appealing the Workplace Relations Commission decison.