EMPLOYMENT EQUALITY ACTS

Decision DEC–E2016–123

PARTIES

A Nurse

(Represented by John Gerard Cullen Solicitors)

and

A Health Service Provider

(represented by Hegarty & Armstrong Solicitors)

File Reference: EE/2012/611

Date of Issue: 30 August 2016

DISPUTE BACKGOUND.

The Complainant referred complaints under the Acts, to the Director of the Equality Tribunal on 3^rd December 2012, alleging that the Respondent had (i) discriminated against on her the grounds of disability and on the grounds of family status and she further submitted that the Respondent had harassed and victimised her on the same grounds.   In accordance with his powers under Section 75 of the Act, the Director, on 24^th July 2015, delegated the case to me, Seán Reilly an Equality Officer, for Investigation and Decision.   Submissions were received from both parties.    

As required by Section 79(1) of the Acts a Hearing took place on 13^th October 2015, and that Hearing was resumed on 21^st January 2016 and on 3^rd May 2016.

SUMMARY OF COMPLAINANT’S CASE.

In her Complaint Form the Complainant stated the following:

I was bullied and harassed on the telephone by a named Manager on 11^th June 2012, when I sought to explain that I was taking sick leave on medical advice due to stress.   I had been obliged to take ‘force majuere’ leave on 8^th June 2012, on getting notice that my mother was gravely ill in hospital.   I was told on 11^th June 2012 by this Manager, in reference to the necessity to take a ‘force majeure’ leave day on 8^th June 2012 and my sick leave, that I could “not just take leave because your mother is ill” - notwithstanding my disability.   This Manager said that notwithstanding a doctor’s certificate that there was very strict criteria for sick leave.   She said that she would have to sanction it and that “sick leave was at her discretion”. She was extremely dismissive.   I subsequently made a complaint about this bullying and harassment, which was ignored by the Respondent.   This Manager’s manner was intimidating and unprofessional throughout.   I was left very traumatised and shaken by this telephone call.

I was further harassed, bullied and victimised by another named Manager on 20^th August 2012, at a named location.   This Manager summonsed me to appear at her rooms, while on sick leave, to discuss my “poor communication performance”.   At this Meeting, it became evident however that the Meeting had nothing to do with the other Manger’s telephone behaviour.   Instead this Manager refused to allow my legal representative to attend the Meeting and she sought to advance a wholly contrived, spurious, false and malicious allegation that I had left my post on 8^th June 2012, without verbal consent and/or without notice.   She alleged that consequently she had “serious concerns” about the clients in my area.   She also contended that it was “poor communication performance” to communicate by text and by post. This latter was in a context where it had been expressly explained to this Manager that because of the other Manager’s telephone bullying and the stress caused that I could not make telephone contact until my complaint in that regard was addressed.   I had explained to this Manager that I was unable to deal with any further stress, which was having a detrimental impact on my health and daily life.   The fact that such bullying had remained unaddressed by the Respondent in the interim was compounding my stress.

This Manager’s manner throughout was repetitively incorrect, false and victimisatory, and was continuously intimidating and oppressive.

It was clear that this Manager in making this insulting, defamatory and baseless allegation of unprofessionalism against me was victimising me inter alia for complaining about the other Manager and for not ‘phoning in (notwithstanding the non-investigation by the Respondent on the other staff member’s telephone behaviour).   Following this Meeting, which left me traumatised, I needed immediate medical treatment and hospitalisation on the following day as a result.   Following my written complaints about the first named Manager no investigation whatsoever has been initiated to date by the Respondent.

In her first written submission, the complainant said the following.

The Complainant said that she is a Public Health Nurse (PHN) employed by the Respondent.   The Complainant said that she wrote to the Respondent invoking the grievance procedure in relation to the bullying of her by (a named staff member) on 11^th June 2012, during a telephone call in which the Complainant sought to inform that she was, on medical advice, unfit for work.   The staff member sought to deny such sick leave, supported by a medical certificate.   This staff member harassed and bullied the Complainant on the telephone informing the Complainant that she would have to approve any sick leave in the Complainant’s case, that the Complainant could not take sick leave “just because your mother is sick” and greatly compounded her stress.

The Complainant formally wrote invoking the grievance procedure in respect of such telephone call.   There has been no and/or no rational response to that invocation of the grievance procedure in the long interim.

Instead of any investigation, a named Manager of the Respondent, then informed the Complaint by letter that she wished the Complainant to attend to see her in her Office while the Complainant was on sick leave from work.   The Complainant duly attended the Meeting on 20^th August 2012 with this Manager to discuss what she assumed would be the bullying and harassment of her on grounds of her disability and her family status.   This Manager described the purpose of the Meeting in her letter as “poor communication performance”.

The Complainant said that Meeting, in effect, turned out to be a ‘dressing down’ Meeting, in which the Manager proceeded to abuse her.   At the Meeting the Manager refused the Complainant permission to be accompanied by a family member (her brother, who is referred to in the Complaint Form as her ‘Legal Representative’).   This Manager proceeded to advance the proposition that in addition to the Complainant writing in to the Respondent by way of text messages and doctor’s reports, that the ill Complainant should also, in addition, call in on the telephone, so, as not so much duplicate, as triplicate the message.   This Manager, informed at the Meeting that she regarded this ‘failure’ by the Complainant to call in personally on the telephone on a weekly basis to repeat what was evident in the text message and doctor’s certificates as “poor communication performance”.   The Complainant said that the only motivation for such measure by the Manager was to increase the pressure on her when she was already suffering from work-induced stress and to victimise her because of her complaint against another Manager.   At this Meeting this Manager not once enquired about the Complaint’s health and/or stress, despite express earlier claims to the contrary of a third Manager of an intention by the Respondent to offer the Complainant support in that respect.

The Complainant said that when the issue of the non-investigation of the bullying and harassment by the first Manager was raised at the Meeting, this Manager passed over it in silence as if it were a matter of no consequence that did not warrant any rational enquiry.   The Complainant informed the Manager that she believed it would injure her health to call in on the telephone in advance of the harassment and bullying on the telephone by the first named Manager being investigated and addressed.   The Complainant said that the Manager then sought to further pressure and abuse her by fabricating a wholly spurious suggestion that the Complainant had left her post without authorisation on 8^th June 2012, for ‘force majuere’ family reasons and that the Manager had serious concerns for the Complainant’s clients.   The Complainant said this latter was an absolutely false and vicious attack on her professionalism, integrity and her capacity to do her work.   The Complainant said there was no basis for such claim other than to inflict maximum psychological injury on her.   The Complainant said that if the Manager had investigated such matter rationally she would have discovered that she had in a fact contacted a named person and a named administrative centre in a named location in advance; and had obtained text message and voice consent to her so leaving her post prior to her actually leaving on the day in question; she had carried out all of her nursing calls on the day and had handed over the one last remaining call to a colleague.

In was submitted that if there was a failure to have a contingency plan in place for the necessary leaving for family reasons of the Complainant because her Mother was seriously ill that is for emergency reasons on 8^th June 2012, that is a matter of managerial insufficiency and incapacity.   The Complainant said that she was extremely offended, insulted and distressed by this wholly baseless, spurious and contrived allegation, when she was out from work on work induced stress.

The Complainant said she had rigorously followed the policies in relation to reporting her absences to the Respondent.   She has submitted medical certificates.   She has punctually duplicated this notice by texting in advance the fact of her non-availability of work on medical advice.   She has been referred to, and accepted the referrals by the Respondent for her to obtain occupational health and physiotherapy specialist assistance, partially caused by the behaviour of the second named manager.

Following the meeting with the second named manager, the Complainant visited her GP on the same day in a distressed state; she was admitted to casualty on the following day and was discharged two days later.   The following Saturday, 25^th August 2012, she sustained a further injury.

It was submitted that is unacceptable that a grievance procedure should exist on paper only; and that should not be implemented in practice, except for person who are preferred members of the second named Manager’s circle.

The Complainant said that she would now recite schematically only the acts by the Respondent that are contrary to the Employment Equality Act 1998, as amended, and that include discrimination on the grounds of disability and family status; and the victimisation of her.

The acts of discrimination:

The Complainant said she has been subject to a series of acts of discriminatory and victimisatory treatment including the non-provision of a safe place of work that was in breach of the equality clause implied by statue.

The elements of the discriminatory treatment

Conditions of Employment:

Victimising, harassing and humiliating an employee during the course of her employment directly and indirectly because of her disability and family status and exposing her to making a health and safety complaint against a Manager under an effectively non-existent grievance procedure.   The acts of the Respondent are discriminatory and victimisatory and in breach inter alia of S.8(b), S.14A, S.14; S22, S31 of the Principal Act of 1998 and as amended

The non-provision of safe place of work and the causation of victimisation amounts to discriminatory and discriminatory acts within the terms and meaning of Sections 6, 8, 14A, 14, 22, 31 of the Act of 1998.   These acts are also in breach of Section 16(3) and (4) of the 1998 Act.

The Complainant said that the above outlined treatment constitutes a denial of equality of treatment as compared to other persons not having the same relevant characteristics as her, and amounts to less favourable treatment in the conditions of employment.   They are directly referable to the Complainant’s status as an employee suffering from a disability and whose family circumstances are that her Mother was gravely ill.   Moreover, the Respondent had no effective policy or procedure concerning harassment or bullying or victimisation in breach of and/or in disregard of the Codes of Practice in Relation to bullying and harassment in the workplace adopted by Statutory Instrument, including those adopted pursuant to the Safety, Health and Welfare at 1989 “Code of Practice on the Prevention of Workplace Bullying” and the Industrial Relations Act 1990 “Code of Practice Detailing Procedures for Addressing Bullying in the Workplace.

At the initial date of the hearing, 13^th October 2015, the element of the complaints that related to Family Status was formally withdrawn by the Complainant’s Legal Representative and he confirmed that they were continuing with all complaints on the grounds of Disability only.

The Complainant presented a second written submission as follows:

The Complainant said that the term ‘disability’ is defined in S.2(1) of the Employment Equality Act 1998 as:

(a)   The total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body

(b)  The presence in the body of organisms causing, or likely to cause, chronic disease or illness

(c)   The malfunction, malformation or disfigurement of a part of a person’s body

(d)  A condition or malfunction which results in a person learning differently from a person without the condition or malfunction   -or-

(e)   A condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

The Complainant said that accordingly the definition of Disability under Section 2 is wide under Irish Law; it is wider that that mandated by the Framework Directive or the Convention of Rights of Persons with Disabilities.

The Complainant said the Respondent in the instant case was told about a condition that led to her being on sick leave, which information information adequately put the Respondent on notice that the Complainant had a disability.

The Complainant said that in Ms. A -v- A Charitable Organisation [DEC-E2011-049] the Equality Tribunal in a decision stated:

“I am not satisfied that the conclusions in the case of Mr. O should automatically lead an employer to conclude that any employee suffering from ‘work related stress’is suffering from a disability within the meaning of Section 2 of the Employment Equality Acts.   In addition, in the present case the medical certificate submitted by the Complainant on 18^th December went on to state that “K... has until recently an excellent health record.   She is currently suffering from work related stress........

I am also not satisfied that the submission of a medical certificate indicating that an individual is suffering from ‘work related stress’, in and of itself, comes within the meaning of Section 2 of the Employment Equality Acts.”

The Complainant submitted that however, in her case there was further notice of disability.   The publication of the sick leave record of the Complainant on an email to her colleagues, the failure to process the grievance complaint, the allegation of grave unprofessionalism also all postdate the further knowledge of the Respondent that the Complainant suffered from stress and anxiety and from working unsafe working conditions.   The Complainant said that the matrix of fact is wholly different to the above case.

The Complainant said that furthermore there is additional emerging countervailing ECJ jurisprudence, domestic case law, the express S2e provision that distinguish the case herein from any ‘medical model’ definition of disability such as is found in the superseded Chacon case rationale.

The Complainant said that the Labour Court have stated: “the duty to provide special treatment or facilities is proactive in nature.   It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability” [ADE/05/16 and the UK EAT decision of Mid Staffordshire General Hospital NHS Trust -v- Cambridge].   The Complainant said the Equality Officer in Mr. O -v- A named Company expressly finds that “the fact is he suffered stress (a disability under the 19988 Act)”.   In that case the Equality Officer had regard to extensive medical evidence.

The Complainant said there is evidence in her case from a named Doctor and there was also notice and patent evidence of “building site” conditions since 2011 at her place of work for the Respondent; and from an Occupational Health Expert and from her GP that put the Respondent on notice of a disability as define at S.2.e of the Act - and which put the Respondent on enquiry.

The Complainant said that like the Respondent in the instant case, the Employer in

1. argued that stress was not a disability.   In that case that complainant had worked for 4 years in the Shop.   The Shop was owned by 2 persons where there was a breakdown in the relationship resulting in that complainant being asked by one to spy on the other, she was caught in the crossfire.   The Equality Officer in that case found that:

“disability must be looked at “in the round”.   It cannot be a game of bingo where a complainant’s doctor labels a condition on the medical certificate in a certain way and the disability provisions automatically apply and s(he) called it something else and the disability provisions do not apply.”

The Complainant said that in B -v- A Newsagent the Equality Officer was satisfied that the Complainant had informed one of the owners that she was not sleeping and was suffering panic attacks thereby put that Respondent on notice of those problems.   The Equality Officer stated that this information combined with the medical certificates would have prompted a prudent employer to seek a second opinion.

The Complainant submitted that the jurisprudence emerging by virtue of the binding nature of the internationally binding UNCRPD and the recent ECJ jurisprudence grounded on the latter undermines any case for a narrow definition or a mere medical model definition of disability in Directive 2000/78 or any attempt to oust the expressly wide and specific provisions of S.2.e of the EEA [CF HK Danmark c-222/13; Kaltoft case C-345/13].   The Complainant said that in Ring –v- DanskDAB c-335/11, the Court expressed the view that reduction of a period of notice to employees who are absent more than 120 days due to illness constituted potential indirect discrimination as it indirectly disadvantaged disabled workers as compared to workers, it applies to all workers who are absent by reason of illness, including those who would not meet the threshold of disability as are absent due to mere illnesses.

The Complainant said that some of the incidents in issue include, inter alia:

1. The abusive telephone call with the first named manager on 11^th June 2012, in relation to the Complainant’s Mother’s disability/hospitalisation

2. The Complainant being brought to a meeting on 20^th August, supposedly to deal with “poor communication performance”, but then being confronted with the grave and vexatious allegation of leaving her post uncovered and her clients in danger.

3. The non-processing of her grievance against the two named managers

4. The publication of her sick leave record by email to her work colleagues

The Complainant said that the failure to treat her as having invoked the Grievance Procedure, the failure to investigate her grievances and the publication of her sick record by email amount to incidents of unfavourable treatment.   In relation to this it was submitted that the Respondent was not entitled to require the Complainant to personally initiate the Grievance Procedure again rather that by using a solicitor in further processing her complaint.  

The Complainant said the right to legal representation arises in situation where there are grave consequences for a person such as a vexatious allegation of unprofessionally abandoning a post in such a manner as to endanger clients and the Complaint referred to the case of O’Brien -v- Personal Injuries Assessment Board [2008] IESC 71, [2009] 3 I.R. 243 in that respect.   It was submitted that an ill employee invoking a Grievance Procedure in relation to her victimisation and false allegations of negligence has consequences that are sufficiently serious to give rise to a right to representation.

It was submitted that the Complainant’s treatment on the telephone was not acceptable.   Nor was the escalation in maltreatment and cumulative, repetitive false allegation to which she was subjected in conditions where she was isolated from all support at the meeting with the second named manager.   The failure to recognise and/or deal with her grievances was unfavourable.   The Complainant submitted that these acts and omissions were unlawful and breached the 1998 Act.

It was submitted that the Respondent’s record of the meeting with the second manager, disguise the tone, harassment, gravity and spuriousness deployed by the Respondent in the false allegation that the Complainant left her post in such a way as to put clients’ health at risk.   She was also expressly and irrationally instructed to make telephone calls to the first named manager in circumstances where she had been verbally attacked by that Manager and where no investigation of such had been carried out.

The Complainant said that while the Respondent’s notes records the grave allegations made against her about abandoning her post, it misrepresents the meeting by its anodyne style.   The Complainant said that the Respondent cannot argue that, while their notes are shorter, there is no material discrepancy in terms of tone, repetition, cumulative harassment or victimisatory effect, gravity or unfounded-ness of the Meeting.   The Complainant said there are such material differences.   The Complainant said that the Respondent’s notes show it was put to her that there were issues with her leaving without permission, which potentially impacted on client care without in any way conveying the professional gravity of that allegation or the victimisatory harassment and tone that it represented.   The Complainant said the Respondent cannot simply contend that “poor communication performance” encompasses what the Respondent implicitly sought to bring up without notice regarding the manner in which the Complainant made efforts to communicate her need to leave work on 8^th June 2012, due to her Mother’s life threatening illness.   The Complainant said that she had a fully legitimate reason for leaving work on that date, that she had made all acceptable and reasonable efforts to inform that to the Respondent, that she had obtained consent, and had made suitable arrangements on that day.

The Complainant said that the treatment meted out to her affected her in an unfavourable manner compared to how it would have affected a person without the disability she had.

The Complainant said that without prejudice to their submission that the Meeting, the publication of her sick leave record, the abusive telephone call, the non-processing of her complaint constitutes discrimination, harassment and victimisation, even if it could be argued that these matters were neutral measures, they impacted more harshly on her due to her disability and that of her Mother than they would have impacted on a person not suffering from a disability and/or not related to a person (her Mother) suffering from a life threatening disability and she has therefore been the victim of indirect discrimination.

The Complainant said that indirect discrimination on the grounds of disability is prohibited by S31 of the 1998 Act, which in turn refers to Section 22.   The Complainant said that indirect discrimination occurs where a neutral [which is disputed] provision puts persons with a disability at a particular disadvantage in respect of any matter other than remuneration compared with other employees who have no disability or a different disability.   This term is given a very specific definition in S.2(1) of the Act as “a term in a contract of employment or a requirement, criterion, practice, regime, policy or condition relating to employment”.   The Complainant said that it is clear that these were not only grave, threatening and unfounded allegations levelled at her when she was separated from support, they were also manifestations of a measure of an objective and continuing nature that is clearly within the definition.

The Complainant said that there was a failure to provide reasonable accommodation because she was, to the knowledge of the Respondent, recovering from a stress related illness, expressly defined as a disability with S.2, and at such a sensitive time the escalation of unfounded allegations by the Respondent set her back.   She said the Respondent had a duty to reasonably accommodate her recovery and her return to work rather than exacerbate her condition through vexatious complaints.   The Complainant said that the concept of reasonable accommodation is about measures taken to render an employee competent to perform their work duties.   Reasonable accommodation places a duty on an employer to take reasonable steps to facilitate a person with a disability being able to work.   It covers a situation where an employer is put on enquiry of disability and/or there is a perception of disability and nonetheless the employer acts irrationally and in a way that harasses and damages an employee’s mental health and gravely escalates her vulnerability through baseless allegations of unprofessionalism. The Complainant said that the telephone call and the Meeting in this case were nasty measures that damaged her mental health; they affected her being able to participate or advance in her employment.

Complainant’s Direct Evidence,

The Complainant said that on Friday 8^th June 2012, she received word, via telephone, while at work, that her Mother was gravely ill and was in hospital.   She said that she tried to contact a number of members of management without success.   The Complainant said that she left a voice message for a named manager stating that she had to take ‘force majeure’ leave, that her Mother was gravely ill, that she had to leave work to be with her Mother, what the matter was and that she was immediately needed to be with her Mother.

She said that subsequently she got a text from this Manager, advising her that it was okay, wishing her a safe journey and asking the Complainant to let her know how things were with her Mother.

She said that on Monday 11^th June 2012, she rang a named Manager and informed her that she is off work certified sick that day; that she had been to see her GP and he has certified her as suffering from stress and unable to work.   She said that she was tearful and crying.   She said that Manager said to her “You’re Mother is sick” and she replied “Yes, my Mother is sick”.   The Manager then said “Just because your Mother is sick, does not mean you can be off sick.   That’s not acceptable.”   She responded “You are missing my point, my Mother is sick; but I am not off because by Mother is sick.   I am certified as suffering from stress by my GP.”   She said the Manager then said “You can’t just take off on sick leave, I have to sanction it.”

The Complainant said that she responded by saying, “I have never been through this before, I have been certified sick by my GP and I can’t say more.”   The Manager then said “Where are you now? “and the Complainant replied “At home”.   The Manager then said Areyou available for handover” and the Complainant replied “I am”   The Manager then said “You are not on sick leave, it has to be sanctioned”   The Complainant said that the Manager was speaking to her and addressing her in a badgering tone.  

The Complainant said that she then said to the Manager “You know what, I’m stressed.   I am not able for all of this and I am sending in my Doctor’s Cert”.   She said the Manager kept saying “You can’t just take off, there are policies.”

The Complainant said that the Manager had a badgering tone throughout the telephone discussion; the Manager displayed anger and had a cross tone with her; she said she was not being believed by the Manager and she was shown no consideration whatsoever and she said she felt intimidated by the Manager.   She said that she left the telephone discussion very distressed and deeply upset.

The Complainant referred to her meeting with the second named manager on 20^th August 2012.   She said that she had been invited to attend this meeting by the Manager to discuss her (the Complainant’s) “poor communication performance”.   The Complainant produced a copy of her record of the Meeting.   It was confirmed that this was drawn up by the Complainant’s Solicitor/Brother about one week after the Meeting in consultation with her.   (However it should be noted that this was not the whole story as it was disclosed by the Complainant and her Legal Representative at the resumed hearing on 21^st January 2016 and 3^rd May 2016 that she and/or her Legal Representative were in possession of two separate surreptitious recordings of this meeting).   This is dealt with in more detail later in this document).

The Complainant said that she wanted to bring someone with her to the meeting as a support; she had intended to bring a colleague, however that did not prove possible.   She contacted her brother (who is also her Solicitor and Legal Representative in these matters) and asked him to come with her as a support and he agreed.

The Complainant said she arrived for the meeting with her brother.   She said that the Manager invited her in to the Office, but she said the Manager said about her brother he is not a (Respondent) employee, he is not allowed in to the meeting and despite her and her brother’s protests the Manager was adamant that her brother would not be allowed in to the Meeting.

The Complainant said that when she went in to the Meeting, the Manager was present along with another person, who was introduced as a Clerical Officer and a notetaker.

The Complainant said that the Manager said she was concerned about the Complainant not contacting/speaking to her directly by telephone as requested by her repeatedly. The Complainant said she was sending in weekly medical certificates, but she could not ring in directly to speak to them, because of what had happened on 11^th June.   The Manager said to her “I prefer that you ‘phone in, that’s the preferred method”.   The Complainant responded “I know, but my concerns are based on the (the telephone discussion) on 11^th June.”

The Complainant said that at no stage did the Manager ask her how are you or suggest that she attend with Occupational Health for support.

The Complainant said she told the Manager I am following the procedure, and the Manager responded it is not a question of the policy, it is my request.

The Complainant said that the Manager said “talk me through what happened when you left (work) on 8^th June.”   The Complainant said she responded, “Why, what’s the problem.”   She said that however the Manager sought a full account of the day in in question.  

The Complainant said the Manager suggested/accused her of leaving her work area unattended and for clients in her area.   She said this was shocking and accusatory to her and she was totally gobsmacked by it.   The Complainant said that she had made every attempt to contact everyone on the day in question and that she received a text from a named Manager confirming it was okay.

The Complainant said the Manager kept saying you did not get verbal consent and was badgering her about leaving without verbal consent.

The Complainant said that her brother, who was waiting in the corridor outside the Office, came into the Office and asked was it safe for her to here.   He asked her did she get an apology.   She replied to her brother, “No I have not, and I am now accused of other issues”.   She said her brother then said to the Manager; “Look (her name) I respect your position, but you must respect mine.”   The Complainant said that she said to the Manager “I feel I have been brought here to get a dressing down.”

The Complainant said the Manager said that the Complainant was advised of the Grievance Procedure and nothing happened.

The Complainant said she told the Manager she would have to terminate the discussion and said that she felt very bullied and harassed.   The Manager responded, I am not bullying you.

The Complainant said that she felt very distressed after this Meeting and she had to be hospitalised due to the distress and she had to undergo psychotherapy.

At the second date of the Hearing the Complainant’s Legal Representative revealed that they had a recording of the Meeting of 20^th August 2012.   He said that the recording was made surreptitiously by himself and the recording device was concealed about his person, he also revealed that he had been eavesdropping or listening at the door of the Meeting Room and could hear much of what being said inside the Meeting Room.   The Legal Representative said that this was done without the knowledge of the Complaint and it was done because of his concern for the health and safety of the Complainant and because he had concerns that she would not receive a fair hearing from the Manager in question.

At the third date of the Hearing, on 3^rd May 2016, and in response to questions as to how the surreptitious recording could contain details of what happened inside the Meeting Room when he was outside the Meeting Room, albeit eavesdropping at the door, the Complainant’s Legal Representative revealed that there was in fact a second surreptitious recording, which he had only just become aware of.  

He said that this this surreptitious recording was made via a recording device concealed within the Complainant’s handbag, but unknown to her, i.e. it had been placed there by another person unknown to her (and apparently also removed unknown to her).   When asked how this device was switched on and off it was stated it was voice activated.

In summary the Complainant’s Legal Representative said the following:

• The definition of disability as contained in the Act was quoted and it was submitted that the Complainant suffered from such a ‘disability’ as defined at the relevant times.

• The Complainant’s Medical Certificate stated that she was suffering from stress.

• The telephone discussion with the first named Manager and the Complainant, constituted, bullying and harassment as defined and constituted both direct and indirect discrimination and less favourable treatment of the Complainant than a worker not suffering from the same disability or suffering from a different disability.

• The letter of complaint from the Complainant about the first named Manager was not taken seriously and was not taken anywhere by the Respondent.

• The publication of the Complainant’s sick leave record and the implied cost to the Respondent of same was prejudicial to her and in particular to the perception of her by others, it was seriously damaging to her and constituted indirect discrimination against her based on her disability.

• The Meeting with the second named Manager was harassment of her in breach of her rights under the Act and the Complainant submitted that the Respondent is now attempting to provide retrospective justification for this harassment.

Witness 1.

The Complainant called one Witness to give evidence in relation to the timing of texts sent between the Complainant and a named Manager on 8^th June 2012 (the date the Complainant left work following a message that her Mother was gravely ill and in hospital).   There is no dispute about what was said in the texts; however the Complainant called an expert witness to give evidence in relation to the difference in timings between them and the Respondent in relation to these texts.   The Witness said he was a consultant who specialised in analysis contents of electronic communications and provided background in that respect.   He said that apart from the fact that the time could be wrong on one of the mobile instruments, it was also entirely possible that there could be difference and a significant one between the time a text message was sent from one device and received on another one.   He said that when a network is busy voice calls are prioritised and texts get a lower priority and can be put on ‘hold’ for some time.   He also explained how the reverse can happen, how a text message can be recorded on one device as received at a time before it is recorded on the other as having being sent.

The Complainant also submitted two medical reports in support of her position; one from her General Practitioner and one from a Consultant Psychiatrist.

The GP’s Report was sent to the Complainant’s Legal Representative on the first date of the hearing 13^th October 2015 at 12.03.   The Complainant acknowledged that this report was based entirely on interactions between her and her GP.  

The Consultant’s Report was sent on 26^th April 2016, specifically for the purpose of the hearing of the instant case.   The date of the first examination of the Complainant by the Consultant Psychiatrist took place was stated as June 2012 and it is clear and was acknowledged by the Complainant that it was based entirely on meetings and discussions with her and the Consultant Psychiatrist.

For all of the foregoing reasons the Complainant sought a finding and decision that her complaint was well founded and that it is upheld, with the appropriate redress awarded to her.

Towards the end of the hearing the Complainant and her Legal Representative/Brother answered questions from the undersigned and the Respondent.

The Complainant confirmed that she never told the Manager at the August 2012 Meeting, that her brother was also her Legal Representative; she said it never occurred to her and that he was there to support her as her brother.

The Complainant stated she was not aware of the surreptitious recordings of the meetings on 20^th August 2012, either the encounter in the corridor or the meeting in the Manager’s Office.   She said she did not know her brother had a recording device concealed about his person and she did not know there was a voice activated recorder concealed in her handbag.

The Complainant said she does not have a record from her mobile telephone of the calls to the managers that she claims she made on the date she left her workplace, 8^th June 2012, she only had the record of the texts between her and one manager (which were not in dispute).

In response to questions the Complainant confirmed the following:

• Where her base or place of work was
• How many other PHN’s were in the same location
• That they were all well known to each other
• That they all provided cover for each other
• That she would know it one of her colleagues were absent on sick leave
• Her colleagues would know if she was absent on sick

The Complainant accepted that the above meant that the disclosure of the information in relation to her sick leave would merely be confirming to her colleagues what they already knew.   However her Representative intervened to say that the information went to others, who would not necessarily already know of her absence.

The Complainant was asked if she believed that the release of this information was aimed at her and that the others included were just collateral damage and she said that she did so believe.   Her Representative said that he did not share this view, but he did submit that the release affected her more based on her disability of workplace stress at the time.

The Complainant was asked why if she believed she was not fit to attend the August 2012 Meeting she did not simply decline to attend as she had done previously and she responded that she believed she was obliged to attend, despite having previously declined to attend.

The Complainant’s Representative was asked a similar question, why if he believed, as he stated consistently, both at the August 2012 Meeting and since and in all his submissions, that the Complainant was not fit to attend and that it was not safe for her to attend, he did not, rather than expose her to such a risk and go to the trouble of surreptitiously recording the Meeting, simply advise her not to attend and simply inform the Respondent, either by writing directly to Respondent informing them of that fact or, as he did with the Complaint Form write the letter and have the Complainant sign it.   The Complainant’s Representative said in response that in hindsight that might well have been the best way to proceed, but he did not think of that at the time, he was worried about his sister at the time.

He was also asked why he did not inform the Manager at or before the Meeting that he was the Complainant’s Legal Representative as would be the normal practice among the legal profession; he said that it did not occur to him, that he was there as her brother and not as a Solicitor.   When asked why he stated on the Complaint Form, which he confirmed he had filled in and had the Complainant sign, that the Manager “refused to allow my legal representative to attend the meeting” he confirmed that his was a reference to himself and he stated it was a mistake on his part.   However he said this did not affect the case or excuse the Respondent’s behaviour.

SUMMARY OF RESPONDENT’S POSITION.

The Respondent submitted the complaints were without merit and should be rejected.

The Respondent said that the complaints of the Complainant is commenced by the Workplace Relations Complaint Forms completed by the Complainant and dated 3^rd December 2012.   The Respondent said that in her Complaint Form by ticking the relevant boxes, the Complainant alleges that she has been discriminated against by reason of her “Disability”.

Although that box has not been ticked, in the submissions contained in her Form, the Complainant also refers to “Family Status”.   The Respondent said that these are two of the available headings as set out in Section 6 of the Employment Equality Act 1998 and no other complaint is made under any other heading.

The Respondent said that a prerequisite to any complaint in respect of discrimination by reason of disability is that the Complainant must actually be affected by some disability.   The Respondent said that disability is defined in Section 2 of the Act as:-

(a)  The total or partial absence of a person’s bodily or mental functions, including the absence of a part of the person’s body.

(b)  The presence in the body of organisms causing, or likely to cause, chronic disease or illness

(c)   The malfunction, malformation or disfigurement of a part of a person’s body

(d)  A condition or malfunction which results in a person learning differently from a person without the condition or malfunction,     or

(e)   A condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.

The Respondent said that they, as the employer of the Complainant, have never been made aware that she does have a disability within meaning of Section 2 of the Act.  

The Respondent said the argument advanced by the Complainant seems to be that the cause of her alleged unfitness for work on 11^th June 2012, and thereafter amounts to a ‘disability’ and that this was the cause of the discrimination.   The Respondent said that the medical certificates submitted by the Complainant refers to “stress”.   The Respondent said that they reject an interpretation that stress in this context can amount to a disability as defined in the Act, and therefore they submit that even on her own case, nothing set out in the complaint can meet the definition of disability in the Act and that therefore her complaint must fail under that heading.

The Respondent said that although the issue is not clearly set out in the Complaint Form, they will also deal with the suggestion that the Complainant was discriminated against by reason of her “Family Status” and they said that this is defined in Section 2 of the Act:-

“Responsibility:-

(a)  As a parent or a person in loco parentis in relation to a person who has not attained the age of 18 years,   or

(b)  As a parent or the primary carer in relation to a person of over that age with a disability which is of such a nature as to give rise to the need for care or support on and continuing, regular or frequent basis

and, for the purposes of paragraph (b), a primary carer is a resident primary career in relation to a person with a disability if the primary carer resides with the person with the disability”

The Respondent said they know of no circumstances under which the Complainant could have been discriminated against by reason of her Family Status as defined in the Act.

The Respondent further submitted the following:

1. If the complainant did not have a Disability or relevant Family Status, then the complaints must fail at the outset as Equality Complaints

2. Even if (which is denied), the Complainant has a disability or her family status could be relevant, but the Respondent was not aware of it at the relevant time then the Respondent could not have discriminated against her by reason of it.

3. The Complainant sets out at length her view of the events which commenced on 8^th June 2102, and the consequences that she says flowed from them for her.   The Respondent submits that (at best) these matters would have been properly the subject of a complaint and investigation under their “Dignity at Work Policy”.   The Respondent said that in fact, as acknowledged in the in the Statement and Submission attached to the Complaint Form, the Complainant did purport to invoke their Grievance Procedure and the matter was the subject of correspondence with her and her Solicitor.  

The Respondent said they emphatically deny that the grievance complaint was not properly responded to.   The Complainant was clearly told in correspondence from the Assistant National Director of Human Resources how she should proceed but failed to so do (correspondence submitted to the Hearing).

4. The Complainant states she was “bullied and harassed” on the telephone by the first named Manager on 11^th June 2012.   She further states that she was “further harassed, bullied and victimised” by a second named Manager at a Meeting on 20^th August 2012.

The Respondent said that the first named Manager’s evidence in relation to the telephone call of 11^th June 2012, will be that:

• The Complainant telephoned and the Manager answered.   The Complainant said she was sending in a sick cert for the week, her mother was sick.   The Manager informed the Complainant that she could not accept a medical certificate on the basis that her Mother was sick and that sick leave had to be approved.

The Respondent said it is noteworthy that the Complainant states in her Submission that she “was obliged to take a “Force Majeure” day on 8^th June 2012.”   The Respondent said that there is indeed provision for the taking of such days in their Terms and Conditions of Employment, but no record exists of the Complainant exercising this right in the required form.

• The Respondent said that the Complainant said that her GP had given her a sick cert and that she was sending it in.   The Manager correctly responded that her sick leave had to be approved.

• The Complainant responded that her GP had given her the medical certificate because she was stressed and the Manager advised her to send in the sick certificate.

• The Manager went on to ask the Complainant if she was available locally, because the Manager needed to contact the adjoining PHN and locum staff to arrange cover for the Complainant’s area.

The Respondent said that was the totality of that Manager’s involvement in these matters.

In relation to the Meeting of 20^th August 2012, the Respondent said that this Meeting was arranged by the Director of Public Health Nursing (DOPHN) (the second named Manager) who invited the Complainant to attend, due to the absence of proper communication from the Complainant, who was then still off on sick leave, as to her progress and her plans for her return to work.   By letter of 10^th July 2012, the Manager invited the Complainant to attend a meeting on 16^th July, but the Complainant responded that she was unable to meet.   A referral to Occupational Health was then arranged for the Complainant and the Meeting was to discuss that and the situation generally.

The Respondent said the Complainant arrived with her brother and that neither she or he disclosed that he was also her Solicitor.   The Complainant’s brother insisted on remaining.   The Manager requested her Secretary to join the meeting and take notes (the notes were submitted to the Hearing) and the Respondent said that those notes demonstrate that the Manager did not in any way, harass, bully or victimise the Complainant and she did no more than properly exercise her functions as the Manager of the Complainant.

The Respondent said it defies logic that an allegation of bullying and harassment might be raised on the basis of these exchanges, they said nothing that happened at that Meeting meets the definition of bullying contained in their ‘Dignity at Work Policy’, which states:

“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual right to dignity at work.”

                                                                 and

“A key characteristic of bullying is that it usually takes place over a period of time.   It is regular and persistent inappropriate behaviour, which is specifically targeted at one employee or a group of employees”

The Respondent said that neither does it meet the LRC Code of Practice definition of bullying, which states:

“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work.   An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”

The Respondent said that their ‘Dignity at Work Policy’ specifically states that the following is not bullying:

“Complaints relating to instructions issued by a manager, assignment of duties, terms and conditions of employment or other matters which are appropriate for referral under the normal grievance procedure.”

The Respondent said that neither does it meet the definition of Harassment under the Act, which states:

“Harassment is defined in the Act as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”

The Respondent said that examples are given of this in their ‘Dignity at Work Policy’ and relevant to the telephone call are:

“Verbal harassment, e.g. jokes, derogatory comments, ridicule or song”.

The Respondent said that nothing of this nature is alleged against either of the managers.

The Respondent said that the Complainant was not victimised and nothing in either her Complaint Form or her submissions can support such an allegation.

The Respondent said that overall and without prejudice to the foregoing they deny both the account of events set out by the Complainant and the construction she seeks to put on what did occur.   The Respondent said that at all times they, and their officers referred to, were endeavouring to manage the Complainant’s absence from work under their Terms and Conditions of Employment, which are binding on the Complainant and all other of their employees.

The Respondent said that they further deny that any events that occurred constitute or could constitute discrimination under any headings set out the Complainant Form or otherwise.

The Respondent submitted that they have no case to answer and they consider that this complaint/claim has been made in bad faith and is frivolous, vexatious or misconceived or relates to a trivial matter and requested that it be dismissed under Section 77A(1) of the Act.

A number of witnesses gave evidence on behalf of the Respondent.

Witness No.1.

The first named manager gave evidence, this is the Manager involved in the telephone discussion with the Complainant on 11^th June 2012.  

The Witness said that she took a telephone call from the Complainant on 11^th June 2012 at approximately 10.30am.   She said the Complainant said “I’m sending in a sick cert for the week, my Mother is sick.”   The Witness said she was not at that stage aware about the position with the Complainant’s Mother.   The Witness said that she replied to the Complainant stating, “I cannot approve sick leave on the basis that it is your Mum that’s sick.”   She said the Complainant responded stating “I’m sending in a sick cert.”.   The Witness again repeated “I cannot approve sick leave on the basis that it is your Mum that’s sick, and she added, “sick leave has to be approved.”   She said the Complainant then said “My GP has given me a medical cert, because I am stressed out.”   The Witness said she then said to the Complainant, “send in the sick cert”.   The Witness then asked the Complainant was she available locally to transfer her essential calls as the Witness would have to get someone to cover her area and the Complainant agreed to do this.

The Witness answered questions including from the Complainant’s Representative.  

In response to questions the Witness said that the discussion was short and perfectly civil on both sides, she said that both she and the Complainant spoke in direct normal tones.

Witness No. 2.

The Clerical Officer who took notes at the Meeting on 20^th Meeting 2012 gave evidence. She said that she was a Clerical Office who frequently took notes and records of meetings and was experienced in so doing.

The Witness said that her notes were an accurate description of the Meeting.   She said the printed version was typed up based on her handwritten notes taken at the Meeting (she did not have the handwritten notes with her at the Hearing).   The Witness answered questions from the Complainant’s Representative.   The Witness insisted and continued to insist that her notes were an accurate record of the Meeting.

Witness No 3.

The second named manager, who conducted the Meeting with the Complainant on 20^th August 2012, gave direct evidence.

The Witness said that the record of the Meeting produced by the Clerical Officer was an accurate one (the Clerical Officer was not present for the exchanges in the corridor).

In response to questions as to whether she had any previous contact with the Complainant prior to the August 2012 Meeting she responded as follows.

She said that she contacted the Complainant by telephone on 25^th July 2012, in relation to the Complainant’s communication with her Line Manager; that she was not ringing and speaking directly to her Line Manager.   She said the Complainant referred to her telephone discussion with the first named Manager and the Witness referred her to the grievance procedures.   The Witness asked the Complainant to ring her Line Manager on a weekly basis and told her that texting was not ringing and was not acceptable.

In relation to August 2012 Meeting the Witness said she was informed that the Complainant had presented herself for the Meeting with the Witness.

She met the Complainant in the corridor outside her Office, who was accompanied by a man who introduced himself to her as the Complainant’s brother.   The Witness said that at no stage did the Complainant’s brother tell or inform her that he was a Solicitor or the Complainant’s Legal Representative (contrary to what was stated in the Complaint Form), nor did she advise the Witness in advance that she would be accompanied by her brother (or anyone else).   The Witness said she told the Complainant’s brother that she could not meet with him as he was not an employee of the Respondent.   She said the Complainant’s brother kept insisting that he should attend the Meeting with his sister and he was ridiculing the letter she had sent inviting the Complainant to the Meeting.   She said that he continued to insist that he attend.

She said the Complainant and her brother followed her into her Office.   She said that she left her Office and left them.   She said that she felt badgered by the Complainant’s brother.

The Witness said that she went to see her Secretary and asked her to attend at any meeting as a notetaker.

The Witness went back to the Complainant and said to her “I am available for the next hour if you want to meet with me, but I cannot meet with your brother.”   The Witness said that they discussed this for few minutes and the Complainant agreed to come in to the Meeting. The Witness then went and got her notetaker.

The Witness said that in the course of the Meeting she informed the Complainant that they had no record of her contacting anyone on 8^th June 2012, when she left her place of work; they just had a record of her text message to one Manager

The Witness said the Complainant’s brother interrupted the Meeting, knocking and entering the Office; he intervened and advised the Complainant to leave the Meeting.   The Witness asked the Complainant’s brother to leave the Meeting.  

The Witness said she asked the Complainant to put in writing issues she had.

The Witness said that she was distressed and traumatised by what occurred and in particular by the behaviour of the Complainant’s brother and she completed an Incident Report Form and submitted it and she discussed it with HR.

The Witness said that the record of the Meeting made by the Clerical Officer was accurate, she said it may not include every word said (and suggested that such records do not so do) but she said and insisted throughout very long questioning by the Complainant’s Representative that the record produced by the Clerical Officer was accurate.

The Complainant also said that the record produced by the Complainant of the meeting and the exchanges in the corridor were reasonably accurate.

In relation to the circulation of information about sick leave about the Complainant and some others the Witness said that general statistical information is circulated to each department informing them of the level of absenteeism/sick leave in each area and it was her intention as usual to send on this general information for the information of all staff in the area.   She said that in the email information received by her there would an attachment with the details of those on sick leave.   She said that on this occasion she, in error, sent out the attachment, with the information on individuals.  She said that this was a mistake for which she and the Respondent apologised.

The Complainant answered questions from the Complainant’s Representative.

Witness No. 4.

This is the person who sent and received text messages from the Complainant on 8^th June 2012.   The Witness said that she was in her Office in a named location on 8^th June 2012 and at circa midday she noted a message on her mobile telephone.   When she opened the message it was from the Complaint.   In her message the Complainant said that her Mother was very unwell and she was leaving (her workplace) to be with her Mother at a named location a very considerable distance away.   The Complainant said she would have her mobile telephone with her, but she may be out of coverage.  

The Witness said that she tried a few times to ring the Complainant, she could not get through to her and eventually got her and left a message stating: “Hope you Mum is okay and make contact in relation to the area covering.”   The Witness said that she then rang the Complainant’s Line Manager, who was at that stage aware of the position as she had spoken to the Complainant’s colleague who worked in the same area and she had informed the Line Manager that the Complainant had left.   When she was satisfied the Line Manager was aware of the position, she did not attempt to contact the Complainant.   She said she does not recall any request from the Complainant in her voicemail message for force majeure leave.

The Witness said that contrary to the statement by the Complainant there was no management meeting that morning, she was in her normal location and all managers had their mobile ‘phones and/or desk ‘phones on and available and the normal administration staff were there.

The Witness said she did find it strange that the Complainant should text her rather than her Line Manager.

The Witness said that she was in the Coffee Dock with the second named Manager on 20^th August 2012.   She said she was aware that a meeting between that Manager and the Complainant was arranged for that day.   That Manager got a message that the Complainant had arrived for the Meeting.   She said the Coffee Dock was fairly close to the Manager’s Office and she said she did hear ‘some commotion’ in the corridor outside that Office.   She also said that she met the Manager shortly after the Meeting and she was very distressed.

The Witness answered questions from the Complainant’s Representative.

Witness No. 5.

This Witness was the Complainant’s Line Manager at the relevant times.   The Witness said that on 8^th June 2012 at circa 1.00pm she telephoned the Complainant’s named colleague who worked in the same area as the Complainant and was told by her of the position with the Complainant.   The Witness said her mobile telephone and her landline was on all day and she had no missed calls recorded.   She further said that there was no management meeting on that day. She also said that Managers do not turn off their mobile telephones when attending management meetings as they may be emergencies they need to attend or respond to.   She said she texted the Complainant stating: “Hi (name of Complainant), I got your message.   I hope your Mum is okay, let me know”   She said she got a one word reply saying “Tanks”.

In relation to sick leave the Witness said the normal practice was to speak with the person on the telephone regularly in order to manage the situation and where appropriate offer support, however the Complainant was not complying with this normal practice and she was concerned about it.   She said that on 14^th June, she sent another text to Complainant enquiring how her Mother was; she said that at this stage she knew of the telephone discussion with the first named Manager.   On 15^th June she sent a voicemail message to the Complainant enquiring if she would be returning to work on the following Monday. She said that she got a text message from the Complainant on the same day.   She said that on 21^st June she sent another text.   On 22^nd June she got a telephone call from the Complainant’s husband, who told the Witness she would be sending in a sick line; he said the Complainant’s Mother was doing well, and he gave no reason for her sick leave.   She said she finished the discussion by asking him to ask the Complainant to get in touch by the end of the next week and he said he would.

The Witness said she left matters for a few weeks, however when she got no direct contact from the Complainant she rang the Deputy Director of Human Resources and he advised her to invite the Complainant to a meeting to discuss this and also to discuss a referral to Occupational Health (OH).   On 10^th July the Witness as advised wrote to the Complainant inviting her to a Meeting on 16^th July.   On the date of the scheduled Meeting the Witness got a text from the Complainant simply stating she could not meet.   Later that day the Witness sent the Complainant a message referring to a referral to OH, but saying she preferred to discuss matters directly with her.

On 19^th July the Complainant sent a text saying she was off work sick.

The Witness said that she then went on annual leave.

On 10^th August the Witness rang the Complainant’s landline and she was answered by the Complainant’s husband, who said the Complainant was in bed.   She asked him to ask the Complainant to ring her and he said ‘No’.

The Witness said that she continued to receive text messages from the Complainant each week in relation to the following weeks’ work, but did not make direct contact by telephone as requested.

There was a referral of the Complainant to OH on 18^th July 2012.

On 4^th September, OH said the Complainant was suffering from workplace stress and they sought a risk assessment be made by them with an update to be provided in 2/3 weeks.   They sent in an assessment along with a letter stating no indicating of workplace stress.  

OH was written to and telephoned and they reverted on 12^th October 2012, proposing a Case Conference, which duly took place.  

After that they continued to receive just texts each week and no direct telephone discussions.

Eventually OH and the Complainant confirmed her return to work.   A back-to-work discussion took place.   The Witness said that she managed the Complainant’s return to work.

The Witness answered questions from the Complainant’s Representative.

The Respondent said that when the Complainant left the premises on 8^th June 2012:

• She had no conversation with any manager and in particular not with her Line Manager and there is no evidence that she made any efforts to so do.   The managers state they had their telephones on and there was no call or no missed call from the Complainant.

• No express permission was given for her to leave at the time she left her place of work.

• No proper cover arrangements were put in place at the time she left (she simply got a colleague to cover) and no arrangement was made ref calls.

• There was no suggestion that she was suffering from stress at that stage.

• Her managers had no knowledge of any alleged stress.

• Workplace stress was not mentioned

• How would her Line Manager or others know of such stress

• An employee cannot take time of/sick leave because of someone else being sick

• After 6^th June she got calls from her Line Manager to respond but did not respond.

• When her husband rang and/or was spoken to on the telephone he did not say why she could not talk to them

• No information was received on her progress.  

• In her (first) letter the Complainant did not invoke the Grievance Procedure

• She was advised by her managers to invoke the Grievance Procedure and she and her Legal Representative were informed and advised how to invoke the Grievance Procedure, but declined to so do.

At the end of the Hearing the Respondent summarised the position as follows:

The Respondent said that in response to the question has the Complainant met the burden of demonstrating a prima facie case the answer must be no.

In relation to the question of whether the Complainant suffered from a ‘disability’ as defined under the Act the Respondent said that there is no evidence that the Complainant at the relevant time or indeed any time suffered from:

• Anything that affected her thought processes
• Anything that affected her perceptions of reality
• Anything that affected her emotions or judgements   -or-
• Anything that showed she suffered from disturbed behaviour

The Respondent said that even if the Complainant was at the relevant time suffering from a ‘disability’ as defined how were they to know as they were not informed by her.

The Respondent said that in relation to the three ‘incidents’ raised by the Complainant they would state the following:

1. ^th June 2012.

The Respondent said there was nothing wrong in the first named Manager’s behaviour during that short discussion and even based on the Complainant’s own record of the discussion there was nothing wrong in the Manager’s behaviour and there mostly definitely nothing that could be described as harassment or bullying.

2. .

The Respondent said that there was an ambush of the Meeting by the Complainant and her Brother/Legal Representative - they said his behaviour, his assertiveness etc, caused the Meeting to proceed the way it did.

The Respondent said they are entitled to call in someone who is absent on sick leave and discuss the position with them, it is a common practice within the employment and in employment generally.

3. .

The Respondent said they have acknowledged that the circulation of this information in relation to a number of employees, including the Complainant was wrong and a mistake and should not have happened and they have apologised to those affected.

The Respondent said that the statement of the Complainant, in answer to questions that the circulation of this information was aimed at her and that the others affected were just collateral damage was amazing and was not in in accordance with the facts.

The Respondent said the Complainant steadfastly gives her reason for not responding and not dealing with issues, was the alleged failure to deal with her grievances; but she was repeatedly told by the Respondent to use the Grievance Procedure to process her grievance and was informed how to do so, but she declined to so do.   The Respondent said the Complainant could have pursued any complaints she had against the two named managers through the Grievance Procedure but she declined do so.

The Respondent submitted that based on the foregoing the complaints were not well founded and they should be rejected.

FINDINGS/CONCLUSIONS OF EQUALITY OFFICER.

I note that at the beginning of the Hearing on 13^th October 2015, the Complainant’s Legal Representative formally withdrew the elements of the complaints that related to ‘Family Status’ and confirmed that they were continuing with all complaints on the grounds of ‘Disability’ only.

The issues for consideration by me is whether or not the Respondent (a) discriminated against the Complainant in respect of her conditions of employment on the grounds of disability, in terms of Section 6(2) of the Employment Equality Acts 1998 – 2008 and contrary to Section 8 of those Acts and (b) harassed the Complainant on grounds of disability in terms of Section 6(2) of the Employment Equality Acts 1998 - 2008 and (c) victimised the Complainant in terms of Section 74(2) of the Employment Equality Act 1998 – 2008.  In reaching my decisions I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.

The Complainant’s complaints are based upon a number of issues or factors:

1. A telephone discussion between her and a named manger on 11^th June 2012.

2. A meeting with a named manager on 20^th August 2012    

3. The alleged failure to deal with or address her grievance against the two named managers     -and-

4. The publication of her sick leave record

I will address each of these issues, but before I do that I will refer to related matters to put these issues in context.

I am very concerned at the behaviour of the Complainant and her Legal Representative at/or immediately before the Meeting of 20^th August 2012.   This was a meeting requested between the Complainant and a named Manger, and she was not as stated in her submission “summonsed to appear at her rooms”, she was invited to attend this meeting by the named Manager.  

It should be noted that this was not an invitation to a Disciplinary Hearing and accordingly there was no question of discipline or adverse consequences arising from it.   This was not the first effort by the Respondent to arrange such a meeting with the Complainant; the Complaint had similarly been invited by letter of 10^th July 2012, from her Line Manager, to attend a meeting for exactly the same reasons on 16^th July 2012, on that date that the Complainant sent her line Manager a text simply stating she could not meet.   Accordingly the Complainant was fully aware that she could refuse or decline to attend such a meeting without any adverse consequences.   Accordingly I cannot accept the submission of the Complainant that she attended this Meeting because she believed she was obliged to attend; plainly she did hold such a view as if she did she would have attended the Meeting on 16^th July 2012 with her Line Manager, with whom she appears to have an amicable working relationship.   In relation to the Complainant’s Brother/Legal Representative I also do not accept that he would not be fully aware that it was open to the Complainant to refuse to attend the meeting, particularly as he consistently and repeatedly (including at that Meeting and at the Hearing) stated she was not fit to attend and it was not safe for her to attend.   Had they done this it would have also avoided any need to attend or to surreptitiously record the Meeting and it is impossible for me to comprehend why he did not so advise her.

Nor do I understand why the Complainant’s Brother/Legal Representative attempted to attend this Meeting.   In the first instance I do not understand why the Complainant and her Brother / Legal Representative concealed from the named Manager the fact that he was a Solicitor and the Complainant’s Legal Representative; in my experience it would be normal practice for a member of the legal profession to declare that fact before any discussion began, I would have thought it was a matter that should have been disclosed by him, not least in the interests of ‘full disclosure’ as sought and insisted by him from the Respondent. I do not accept the explanation by him that “it did not occur to him” as at all credible, as subsequently he engaged in copious and detailed correspondence with the Respondent identifying himself as the Complainant’s Legal Representative.   In addition I note that in the Complaint Form lodged on behalf of the Complainant, which the Complainant’s Brother/Legal Representative completed on her behalf, he stated: “Instead this Manager refused to allow my legal representative to attend the meeting...”   While he stated at the Hearing that this statement was a “mistake on my part” it does appear to confirm the view that it was his belief at the time and up to at least 3^rd December 2012 that he sought to attend as the Complainant’s Legal Representative.   I also cannot accept that the Complainant was, at that meeting, or in any Grievance or Disciplinary Hearing or Meeting, entitled to be legally represented, or indeed by anyone under than a registered trade union official or a work colleague.   It is fact that was or should have been fully known to the Complainant as it is contained in her conditions of employment and in particular in the Respondent’s Grievance Procedure and their Dignity at Work Policy, and I note that the Respondent sent a further copy of those documents to the Complainant on 8^th November 2012.   It is also a fact that should have been known to the Complainant’s Legal Representative as it is so stated in unambiguous terms in S.I. 146 of 2000 the ‘Code of Practice on Grievance and Disciplinary Procedures’ and was definitively stated by the Supreme Court in Burns and Hartigan -v- The Governor of Castlerea Prison.   In addition he was also on 8th November 2012 sent the same information as his Client, the Complainant.

It should be noted that I did not allow the surreptitious recordings by the Complainant’s side of the Meeting on 20^th August 2012, to be submitted to the Hearing for stated reasons, and both parties accepted my ruling in that respect.

Notwithstanding this I remain concerned in relation to the fact of the surreptitious recordings of the Meeting of 20^th August 2012 and the facts and circumstances surrounding it. I firstly note that as stated above the Complainant and/or her Brother/Legal Representative acting on her behalf could simply have declined to attend the Meeting and informed the Respondent that she was not at that time fit to attend such a meeting.   The Complainant turned up for the Meeting accompanied by her Brother/Legal Representative and despite being told repeatedly by the named Manager that her Brother could not attend, the reason why, and also that they both were aware or should have been so aware that he was not entitled to so attend, they, and in particular he, continued to try to force his attendance.   Even when the Manager informed the Complainant that she could attend the Meeting without her Brother or chose not to attend at all they did not withdraw from the Meeting.   Even after the Complainant agreed to attend the Meeting without her brother, he remained on the premises and he confirmed to the Hearing that he eavesdropped at the door of the Office where the Meeting was taking place and despite the Complainant’s agreement to attend without him he interrupted the Meeting and interjected into it.

The fact of the existence of the surreptitious recordings of the Meeting of 20^th August 2012 was not disclosed until the beginning of the second day of the Hearing and the fact that there was a second one of inside the Office where the Meeting was held until the third day of the Hearing.   I do not understand why this was not disclosed at the beginning of proceedings, or indeed in view of the Complainant’s Legal Representative’s quite proper insistence of full disclosure to him of all relevant and pertinent facts and information in advance of the Hearings, he did not disclose this information either before the Hearings began or at the beginning, perhaps as a preliminary issue.

We are informed that the Complainant was not aware of the surreptitious recordings.   We are invited to accept that the Complainant’s Brother/Legal Representative had a recording device concealed about his person unknown to the Complainant – and further that there was a second recording device concealed within the Complainant’s handbag unknown to her! (Apparently voice activated).   Such a submissions stretches credibility beyond breaking point; I cannot accept that the Complainant was not aware of this recording and I note no explanation was given of the necessity or reason for the recording device concealed about the Complainant’s Brother/Legal Representative if matters were being recorded by the one concealed in the voice activated recording device concealed in the Complainant’s handbag.

It would be difficult not to accept the submissions of the Respondent that the behaviour of the Complainant and her Legal Representative constituted an ambush of the Meeting of 20^th August 2012.   I certainly accept that it caused distress and concern to the named Manager and affected the way the Meeting proceeded and ended.

I note and find that there is no substantial difference between both parties record of the Meeting of 20^th August 2012.  

I find that the Respondent is fully entitled to call an employee who is absent on sick leave in for a discussion and indeed that it is the practice within the employment, which I believe must or should be known to the Complainant, and I further note and find that this is common practice in employment generally.

In relation to the 8^th June 2012, when the Complainant left her workplace upon being informed that her Mother was gravely ill, I note that it is a fact that the Complainant did not have a conversation with any manager.   I can readily understand why this would occur as the Complainant would be naturally upset and stressed by the news of her Mother’s condition and would be anxious to be with her Mother.   The Complainant states that she tried to make telephone contact with a number of managers to no avail.   The Respondent and 3 witnesses on their behalf state that their telephones, both mobile and landlines were open and available all of that day and that no telephone calls or messages of calls were received from the Complainant.   I note that the only record the Complainant has in that respect, is of the texts not in dispute and accepted by the Respondent as having being sent to one manger (not her line manager) after she had left her workplace and the subsequent response.   It is interesting to note that these text messages, that are fully accepted as having been sent and received, are the only ones retained by the Complainant.   In the circumstances I must accept the evidence submitted by the Respondent and confirmed by 3 witnesses that there was no contact by the Complainant with the managers before she left her workplace on 8^th June 2012.   I can also accept that this was caused by the upset and stress of the Complainant on being informed that her Mother was gravely ill.   However it I find it is a fact that as stated by the Respondent that before the Complainant left her workplace on 8^th June 2012:

• She had no conversation with any manager and in particular not with her Line Manager and there is no evidence that she made any effort to so do.

• No express permission was given for her to leave at the time she left.

I find that in such circumstances it was perfectly reasonable of the Respondent to want to speak to her of such matters.

I find that where a manager is informed or made aware that an employee may have left the workplace without express permission, she or he has an obligation to investigate such, even if such is upsetting to the employee.  

In relation to the question of requiring employees to make regular direct verbal contact (by telephone or in person) while out on sick leave I know from my own knowledge of a large number of hearings involving the Respondent that it is a part of their processes and procedures in dealing with and managing attendance and this is a fact that would or should have been known to the Complainant: indeed it is common practice in a great many workplaces.   I find that such a practice does not constitute harassment or victimisation of the Complainant by the Respondent nor could it be said to be discriminatory.   It is clear that an employer must be provided with relevant information concerning an absent employee’s circumstances in order to enable the employer to plan and manage the situation and to explore whether Section 16(3) obligations arise.

I find that there is nothing in either party’s record of the Meeting of 20^th August 2012 that could be reasonably held to be harassment, bullying or victimisation of the Complainant by the Respondent nor be said to be discriminatory.

In relation to the telephone discussion of 11^th June 2016, between the Complainant and a named Manager, I note and find that it could not be said to be bullying as submitted by the Respondent as a ‘one off’ incident is not bullying as defined.

In addition I find that there is nothing in that discussion that could reasonably be held to be harassment or victimisation of the Complainant by the Respondent, or be said to be discriminatory.

In relation to the alleged failure of the Respondent to deal with or address the Complainant’s complaint against the two named managers I note the following.   It is a fact common to all disciplinary procedures, all dignity at work policies, all codes of practice on bullying and harassment and of particular relevance to the instant case to the express policies of Respondent that an employee making a complaint of bullying and harassment must make such a complaint themselves in writing with details etc.   It is also a fact that the Respondent repeatedly informed the Complainant what was necessary and required of her in order for them to be able to commence an investigation of any complaint she had in that respect, both verbally and in writing on 8^th November 2012, which letter was copied to the Complainant’s Legal Representative on the same date.   It is a fact that in relation to such complaints employers must be neutral between the employee(s) making such complaints and the employee(s) against whom such complaints are made and they cannot commence any investigation or procedure until a formal written complaint in accordance with such procedures is made by any employee(s). However despite being afforded every opportunity to properly make such a complaint the Complainant failed, declined or refused to so do; in such circumstances the Respondent could not commence any investigation or procedures.  

I find that the fact that there was no investigation of the Complainant’s grievance was entirely due to the fact that, despite being made fully aware of them and how to avail of them the Complainant failed to invoke either the ‘Grievance Procedure’ and/or the ‘Dignity at Work Procedure’.   Any failing in that respect lies squarely with the Complainant. I find that there can be no bullying, harassment or victimisation of the Complainant by the Respondent in that respect nor could it be said to be discriminatory.

In relation to the publication by the Respondent of the Complainant’s sick leave record by way of an email I note the following.   Firstly I note that this submission is based on the view that there is something wrong or disreputable in availing of sick leave and that making that fact known is somehow likely to bring an employee into disrepute and be damaging to her or his reputation.   I do not accept this view of sick leave and I do not accept that it is a view that could be reasonably held by any reasonable person.   Almost all employees have to avail of sick leave at some stage during their working life and it is not held in way to be disreputable.   I find that being on certified sick leave is not damaging to an employee’s reputation and I note that no evidence in support of such a proposition was presented.

I accept that this sick leave information in relation to the Complainant and a number of her colleagues was accidently released by the Respondent and I note that they have ‘held their hands up’ in that respect and apologised to those affected.   I do not accept the submission of the Complainant that the release of this information was aimed at her and that the others affected were just collateral damage and I note that I was presented with no evidence to support such a serious suggestion.   I note that at the Hearing the Complainant accepted that the disclosure of the information in relation to her sick leave record was simply confirming to her colleagues what they already knew.   In such circumstances there cannot be said to be any disadvantage or detriment to the Complainant.

I find that the disclosure of the information in relation to the Complainant’s sick leave record did not constitute bullying, harassment or victimisation of the Complainant by the Respondent in that respect, nor could it be said to be discriminatory of her.

In evaluating the evidence I must consider whether the Complainant has established a ‘prima facie’ case in accordance with Section 85A of the Employment Equality Acts 1998 to 2008.   The Labour Court have consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a ‘prima facie’ case is established and the burden of proof shifts to the Respondent.   Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  

In the instant case I must be satisfied that the Complainant is or was at the time of lodging her complaint a person with a disability.   The Complainant submits that she was suffering from stress at the relevant time and that this is a ‘disability’ as defined under the Acts.   The definition of a ‘disability’ is set out is Section 2 of the Acts.   I find it is obvious that the model contained in the Acts is broader in scope than that set out in in the Directive and therefore can in certain circumstances include disabilities of a temporary nature.   However I find that it does not include mere references to sickness made without medical evidence.

I note that the Labour Court accepted in A Government Department -v- A Worker [EDA/094] stated:

“The Court must take the definition of disability as it finds it.   Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327).   Nevertheless no statute can be construed so as to produce an absurd result or one that is repugnant to common sense. That common law rule of construction has now been given statutory effect by S.5(1) of the Interpretation Act 2005.   It would appear to the Court that if the Statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could fairly be described as an absurdity.   But it is not necessary for the Court to reach a concluded view on that point in the instant case because the Complainant is not contending for such an interpretation of the statue.”

The ECJ in Chacon Navas -v- Eurest Collectividades SA [C-13/05] held that the concept of disability must be given an autonomous and uniform meaning across the member states.   It “must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.”

I do not find that a person who is ‘stressed’ is automatically protected by the disability ground. ‘Stress’ is a normal part of life.   I do accept that if stress is not properly managed it can manifest itself in health problems. However, I cannot construe ‘stress’ to be a ‘disability’ in the circumstances of the instant case in accordance with the provisions of the Acts.   I was

presented with no evidence to support the contention the Complainant was ever diagnosed with a recognised mental illness or physical malfunction in accordance with the Acts.  

It is clear that the Complainant, at the relevant time was ‘sick’ and was medically certified as such and that fact is not in dispute.   It is clear that sickness can develop into a disability, however I was presented with no evidence that this occurred in the instant case.

While the concept of imputed disability was not explored at the Hearing, I am satisfied on the facts of this case that the Respondent was not imputing a disability onto the Complainant.

I find that the Complainant was not a person with a disability as defined in the Acts at the relevant time.

DECISION OF EQUALITY OFFICER.

I have completed my investigation of the above complaints and in accordance with Section 79(6) of the Employment Equality Acts I have made the following decisions.

Based on the foregoing findings and conclusions I find and decide that the Complainant has failed to establish a prima facie case of discriminatory treatment, harassment and victimisation on the disability ground - the Complainant was not a person with a disability at the relevant period.

I further find and decide that even were that not the case that:

(a)   The Complainant has failed to establish a prima facie case of discrimination in respect of her conditions of employment on the grounds of disability or on any grounds in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts.

(b)  The Complainant has failed to establish a prima facie case of harassment on the grounds of disability or on any grounds in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts.

(c)   The Complainant has failed to establish a prima facie case of victimisation in terms of Section 74(2) of the Acts.

The Complainant’s complaints fail in their entirety.

SIGNED: _______________________________     DATE:__________________________

                 SEÁN REILLY,

                   EQUALITY OFFICER/ADJUDICATION OFFICER