DEC-E2016-005

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-005

PARTIES

An Employee

(Represented by Purdy Fitzgerald Solicitors)

AND

An Employer

(Represented by Desmond Ryan B.L., instructed by Matheson Solicitors)

File reference: EE/2014/401

Date of issue:  20th January 2016

HEADNOTES: Employment Equality Acts – Disability – Conditions of Employment & Harassment, Discriminatory dismissal

1. DISPUTE

1.1. This dispute concerns a claim by Ms. HC that she was treated in a discriminatory manner by DR Ireland Ltd on the grounds of disability contrary to Section 8 of the Employment Equality Acts. The Complainant claims that the Respondent discriminated against her in her conditions of employment; in harassing her; in refusing her reasonable accommodation; in victimising her and; in discriminatory dismissal.

1.2. The Complainant referred her claim to the Director of the Equality Tribunal on the 24th of July 2014 under the Employment Equality Acts. On the 7th of September 2015, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Shay Henry, an Equality Officer, for investigation, hearing, and decision, and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on the 16th September 2015.

1.3. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

2. COMPLAINANT’S SUBMISSION

2.1. The Complainant commenced employment with the Respondent in 2005 as HR Manager and was promoted to HR Director EMEA in January 2006. In this role she reported directly to the Vice President, Europe with a dotted line reporting relationship to the Group Vice President Human Resources (US). From 2012 she was assigned HR responsibility for two Executive Vice Presidents and the Global Commerce organisation, in addition to managing HR requirements for the EMEA and APAC regions which jointly amounted to 11 offices. Since commencing employment the Complainant had an impeccable employment record which was reflected in the ratings she received in the performance related pay system.

2.2. In 2010 the Complainant was diagnosed with a slipped disc and, following a fall in 2011, suffered further disc damage. In early 2014 she was diagnosed with four slipped discs, one of which was compressed with irreversible damage.

2.3. At a meeting with Ms. S, to whom she reported, on 8th January the Complainant advised her of the diagnosis. On 16th January, following further medical advice, the Complainant informed Ms. S of an upcoming appointment with a neurosurgeon which could result in surgery or rehabilitation, both of which would require time off work. Subsequent to the examination, on 30th January, the Complainant advised Ms. S that she had been recommended a combination of rest and various treatments over a three week period during which she would be on sick leave. During the meeting Ms. S advised the Complainant that her health was the most important thing and to do what she needed to do and also advised her that she need never worry about her job.

2.4. On Friday 31st January, prior to commencing her medical leave, the Complainant conducted a handover of all tasks to Ms. S and an update on all projects. Ms. S inquired as to how the Complainant proposed to be available during her medical leave and asked her if she could specify particular times each day that she would check in with the office and be available for questions. The Complainant explained that the medical leave was to afford her time to take a complete break from work and to focus on recovery and rehabilitation. However, Ms. S was insistent that the she be available to take calls which caused the Complainant significant anxiety at that time and during her recuperation which hampered her recovery.

2.5. At the end of the sick leave period the Complainant’s doctor determined that she was unfit to return for a further three weeks at which stage she would need to return on a phased basis. The Complainant attempted to contact Ms. S immediately both by phone and email. She spoke with Ms. S on 24th February and Ms. S berated her for not returning and for letting both her (Ms. S) and her team down and for not being accountable. Ms. S informed the Complainant that she would expect her to figure out how to manage and distribute her work and made it her responsibility to source a replacement for one of her team members who was due to begin maternity leave. As a result the Complainant was extremely upset and tearful during the call, partly due to the pain she was experiencing, but primarily due to the way she had been spoken to by Ms. S.

2.6. Following the second three week period of sick leave the Complainant’s GP advised a phased return and provided a letter to that effect to the Respondent on 12th March. The Complainant copied this letter to Ms. S and made a number of attempts to contact her by email and phone. On her return to work on 18th March the Complainant sought a meeting with Ms. S as she had no information on the status of tasks and projects that occurred in her absence.

2.7. At this stage the Complainant discovered that whilst she was out, instead of hiring a temporary employee to provide maternity cover, Ms. S had hired a permanent employee in the UK at a more senior level. The Complainant also discovered that Ms. S was travelling to Europe the week after the Complainant’s return to work to meet with this new employee but she had not informed the Complainant of these plans as would have been normal.

2.8. The meeting with Ms. S took place on 20th March and it began with Ms. S berating the Complainant for not making herself available during her medical leave. She then informed the Complainant that the executive partnering, a significant portion of her role, was to be removed from her area of responsibility. The reason given was that remote HR support was no longer working and in light of all this plus the recent permanent hire of a senior HR professional in the UK, that the Complainant’s role was no longer required. In addition, the hiring of the HR person in the UK was putting the Respondent over budget.

2.9. In a follow up meeting on 27th March Ms. S again berated the Complainant for lack of accountability during her medical leave. The Complainant explained to Ms. S that while she was catching up with matters since her return she was very unsure what tasks and projects to pursue given that she had been informed the previous week that her role was being eliminated. Furthermore, she had no way of knowing if her team still reported to her and what was expected of her in relation to executive partnering. What followed was confusing in so far as Ms. S stated that the Complainant’s role was currently at risk of redundancy while also saying that she should figure out an alternative role for herself. The Complainant was left upset and confused regarding her future with the Respondent.

2.10. As a result of the foregoing the Complainant wrote an email to Ms. S on 3rd of April raising a grievance about the manner in which she had been treated and seeking clarity on her position. On the following day the Complainant was again berated by Ms. S during a phone call in which Ms. S stated that she was ‘extremely disappointed in her’, that ‘her email was not respectful and was impolite’ and that ‘she was not going to communicate with the Complainant via email’ and that the Complainant’s actions in writing her concerns in an email put Ms. S ‘on the defence’. Ms. S refused to let the Complainant speak and informed her that she was ‘making life very difficult for herself’. She told the Complainant not to send any more emails and that ‘she needed to figure out a role for herself’.

2.11. The conversation continued by phone the following day and the Complainant again sought clarity on her role i.e. as to whether it had been eliminated or whether an alternative was being offered. Ms. S refused to clarify the situation. The Complainant asked what types of HR roles were suitable and located in Ireland. Ms. S stated that none were available and the Irish office would most likely close. Ms. S also stated that if she ‘made things difficult’ her role would be eliminated and that the current situation was of the Complainant’s own making as a result of her medical leave. The Complainant left this lengthy phone call feeling belittled and confused.

2.12. A further call took place on 9th April where Ms. S expressed her frustration at being asked to provide the Complainant with a job description and repeated that the risk to her job was compounded by her absence whilst on medical leave. On the same day the Complainant’s doctor diagnosed stress and anxiety which was hindering her recovery and recommended further medical leave.

2.13. On 15th April a further discussion took place at which Ms. S opened the meeting by stating that the Complainant had stated at the previous meeting what she wanted to resign. This was untrue. The matter was revisited the following day when Ms. S confirmed that she had decided not to make the Complainant’s role redundant at that juncture but might revisit at a later date. Furthermore the Complainant would be held accountable for all of her goals identified prior to the medical leave and prior to her change in responsibility and that if she did not like it she could resign. If she chose not to resign Ms. S would be monitoring her performance and expected high engagement from her and if this did not occur it would be a performance issue.

2.14. At the this point the Complainant had been certified as unfit to work and, because of the impact on her health, and in an effort to have her grievances dealt with properly she instructed her solicitors to write to the Respondent. This letter was sent on 23rd April and reference was made to the fact that the Complainant had been dealt with in a discriminatory manner contrary to the Employment Equality Acts. A request was made to have the matter independently investigated. On foot of this letter discussions on a without prejudice basis took place on 29th April. However, there was no formal response or any effort to deal with the issues raised and the Complainant was left with no option but to resign on 12th May.

2.15. It is clear that the back injury from which the Complainant suffered comes within the definition of disability and there is ample medical evidence to support this stance.

2.16. The Complainant contends that she was harassed on the grounds of her disability and refers to the various interactions with Ms. S which she alleges fall within the definition of harassment in Section 14A(7) of the Employment Equality Acts.

2.17. The Complainant contends that the Respondent failed to provide reasonable accommodation to her insofar as she was expected to be available during her medical leave and to manage and distribute her work including recruiting a replacement for a member of staff going on maternity leave. In addition the failure of the Respondent to communicate with the Complainant regarding her phased return to work represents a further failure to provide her with reasonable accommodation.

2.18. The Complainant contends that having raised a grievance on 3rd April regarding the issues surrounding her period of medical leave she was victimised in accordance with Section 74(2)(a) of the Employment Equality Acts. Specifically, in the manner she had been communicated with on her return from medical leave by Ms. S on 4th April; where on 5th April in a telephone conversation Ms. S told her that if she made things difficult her role would be eliminated; where on15th and 16th April Ms. S informed her that she would be held accountable for all of her goals identified prior to medical leave and that if she did not like it she could resign and; that if she chose not to resign that Ms. S would be monitoring her performance and if she did not demonstrate high engagement this would become a performance issue. The Complainant contends that the failure of the Respondent to reply to the letter of 23rd April also constitutes victimisation as it was clear that this lack of response would cause further stress and leave her in an impossible situation. It is clear that the manner in which the Complainant was treated was not solely because of her disability but also because of the manner in which she sought to raise complaints regarding this treatment.

2.19. The Complainant contends that she was constructively discriminatorily dismissed. The harassment, discriminatory treatment and in particular the actions of Ms. S left the Complainant with no alternative but to tender her resignation. The conduct of the Respondent was so unreasonable that the Complainant had no alternative. Furthermore, in circumstances where it was communicated to the Complainant that her position was to be made redundant despite there being no basis for the redundancy the breach of contract test for constructive dismissal is also satisfied.

2.20. It is clear that there was a causal link between the Complainant’s disability and the treatment to which she was subjected. Before going on medical leave there were no issues regarding performance but within two days of her return she was told her role was to be terminated. Ms. S expressly confirmed the treatment and threat to the Complainant’s job was directly as a result of her medical leave.

3 Respondent’s submission.

3.1 Preliminary Objections

3.1.1 The Complainant has provided no evidence other than extremely limited medical certification of her being unfit for work and has at no time put the Respondent on notice that she was suffering from a disability. For the Complainant to establish a disability within the meaning of the Acts she must establish the seriousness of that disability as distinct from temporary sickness and show that it was not transient or insubstantial. Reliance is placed on various decisions of the Court of Justice of the European Union.

3.1.2 The Complainant has identified no adequate comparator. The Complainant purports to name Ms. BG on the basis that she took over the majority of the Complainant’s work when she was on medical leave. Ms. BG is not the appropriate comparator as a matter of law. In this regard reliance is placed on the authorities of the United Kingdom House of Lords in London Borough of Lewisham v Malcolm 2008 and the English Court of Appeal in Aylott v Stockton-On-Tees Borough Council. These cases provide authority that the correct comparator in disability related discrimination cases is ‘someone who had behaved in the same way as the person concerned but did not suffer from that person’s disability rather than someone who had not acted in the way that caused the employer to treat the employee as it did.’ Therefore the Complainant in this case was obliged to identify as a comparator someone who shared the Complainant’s sickness record but not her alleged disability.

3.1.3 The Respondent further relies upon the case of Hric v First Express 2012 in which the complainant was not permitted to alter the name of the chosen comparator at the Equality Tribunal hearing as the Equality Officer was satisfied that this would effectively amount to a new claim being brought.

3.1.4 The Respondent objects to a claim for discriminatory dismissal being pursued in circumstances where the Complainant was not dismissed but rather resigned her employment and did so in a manner that was unwarranted and premature.

3.1.5 The Respondent refers to the Complaint Form which purported to claim that the Complainant was also the victim of alleged discrimination on the grounds of family status, which is rejected and which goes fundamentally to the credibility and bona fides of the complaint.

3.2 The Complainant is a highly experienced and senior Human Resources practitioner. The Respondent does not dispute that she was a long-term, valued employee nor does the Respondent dispute that she experienced health issues arising from a fall. In and around 8 January 2014 the Complainant advised the Respondent that she had been diagnosed with four slipped discs and that medical intervention was required. She took six weeks’ paid medical leave commencing 31 January 2014.

3.3 Ms. S was based in America and the meetings referred to were in fact video telephone calls. In the calls referred to which took place on 30/31st January Ms. S had understood that the Complainant would let her know what days she wished to take off. It came as a surprise to Ms. S that the Complainant was off from 3rd February and as a result her direct reports were required to pick up her work.

3.4 The Complainant did not conduct a handover of work nor did she provide updates on all projects. Ms. S did not ask her how she proposed to be available during leave or insist on such contact. Such action would not be in accordance with the Respondent’s HR procedures. Ms. S did not insist that the Complainant check in with the office or require her to be available for calls or questions.

3.5 The Respondent rejects as untrue the allegations relating to 21st February. Ms. S did not access any voicemails that day. Ms. S did telephone the Complainant on receipt of her email and told her that she fully supported her modified work schedule.

3.6 The Respondent denies the Complainant’s assertion that Ms. S berated her during the telephone call of 24th February. As the Complainant had not conducted a handover prior to taking leave Ms. S told her that it would be helpful to understand the Complainant’s ongoing tasks, particularly as another member of the Complainant’s team, Ms A L, was due to go on maternity leave. Ms. S informed the Complainant that approval had been received to hire a contractor to cover the maternity leave. Ms. S did not require the Complainant to hire a contractor. Instead, Ms. S informed her that this financial support was in place for the Complainant to hire a contractor when she returned from leave.

3.7 The Respondent accepts that the Complainant was tearful on at least two of the calls with Ms. S. One reason for this related to a new Executive Vice President, Mr P, who did not wish to continue the working relationship with the Complainant due to her location, but rather he preferred to work with Ms. H, one of the Complainant’s direct reports who worked in the same building as him. Ms. S informed the Complainant that Ms. H still reported to her. A second reason for the Complainant’s unhappiness was related to the Stockholm office where a part-time HR contractor was to be replaced on a full-time basis and, for budgetary reasons, would be reporting directly to the World Payments team and not to the Complainant. The Complainant apparently felt her job was being eliminated and Ms. S sought to reassure her in this regard.

3.8 The recruitment of a more senior employee in the UK relates to Ms. B G and was in response to the Respondent’s ongoing restructuring. A new EMEA VP was hired in the UK. Due to the size of the team in the UK it made sense to hire a UK based HR partner – Ms. B G – who would still report to the Complainant. Ms. B G therefore, is a business partner based in the UK and not a replacement for the Complainant. The Respondent rejects the assertion that the Complainant was told that her role was no longer required.

3.9 The Complainant returned to work on a phased basis as requested. At no stage did she request any reasonable accommodation to be provided. No issues were raised by her regarding any disability and no medical documentation was submitted signalling the need for any accommodation.

3.10 Ms. S received the email from the Complainant dated 3rd April while on holiday in Mexico. This email makes no reference to disability or discrimination. Ms. S was shocked by the content and immediately phoned the Complainant. A rearranged phone call took place the following morning and the Complainant informed Ms. S that she was having difficulty with the level of change in the business. Ms. S assured her that her role was not changing and that Ms. S continued to support her and her role.

3.11 On a number of occasions following Ms. S’s trip, the Complainant continued to be upset about the Mr P situation and that Ms. S could not convince him to retain the Complainant’s support. The Complainant told Ms. S that she wanted to resign and to get a severance package. Ms. S inquired into the arrangements for such packages. Ms. S told the Complainant she would not get a severance package for resigning as this was not a redundancy situation and that the Complainant could make her role work and that it was still needed. Ms. S said if the Complainant was not resigning they should move on and address work matters.

3.12 On 23rd April the Complainant’s solicitors wrote raising for the first time allegations of discrimination. A representative of the Respondent, Mr K C, contacted the Complainant’s solicitor who sought a severance package on threat of proceedings. The Respondent considered the terms demanded to be unacceptable. It was open to the Complainant to make a formal complaint under the Respondent’s grievance procedure at this time however, no such complaint was made.

3.13 On 12th May the Complainant tendered her resignation with immediate effect. On the same date her solicitor wrote to the Respondent claiming that the Respondent failed to reply to the earlier letter on 23rd April. This was untrue as Mr K C had contacted her solicitors on 29th April to discuss the situation. The suggestion appears designed to obscure the fact that the Claimant acted prematurely in unilaterally resigning.

3.14 There is no basis for the Complainant to contend that she was constructively discriminatorily dismissed. In this regard it is submitted that particular weight must be attached to the fact that the Complainant is an experienced HR professional who is undoubtedly aware that the preferable position where grievances are concerned is to seek to resolve matters on an informal basis which Ms. S attempted to do by telephone. If the Complainant was dissatisfied with this attempt it was open to her to raise a formal grievance.

4 Conclusions of Equality Officer

4.1 Preliminary Matters

4.1.1 The definition of disability in the Employment Equality Acts sets out in general terms conditions and impairments which can be considered to be a disability for the purposes of the Acts. The definition does not require that a disability meet a particular threshold of severity for the condition or impairment. Both the Labour Court and Equality Tribunal have held that disabilities which are of a temporary nature can come within the ambit of protection of the Acts. The primary reason relied on in these decisions is the express reference within the definition to disabilities which “previously existed but no longer exists” in section 2 of the Acts. In Customer Perception Limited v Leydon,[2004] 15 ELR 101, the complainant was involved in a road traffic accident which resulted in reduced movement in her shoulder, back and neck and the Court held that the injury came within the meaning of paragraph (c) of the definition of disability. Accordingly, and based on the evidence provided at the Hearing, I am satisfied that the injury from which the Complainant suffered comes within the definition of disability contained in the Acts.

4.1.2 In relation to the question of comparator the Respondent claims that the comparator chosen, Ms BG, is not appropriate and secondly, that the Complainant may not change the comparator on the day of the Hearing. In support of the latter point the Respondent cites Hric v First Express 2012. The case cited is an equal pay case. Changing the comparator in such a claim on the day of a Hearing could disadvantage the respondent and could amount to a new claim. However, the present case is not an equal pay case. It is about allegations of discriminatory treatment and of harassment. In the case of harassment no comparator is required. In the case of discriminatory treatment the principal argument being put forward is that the treatment related to a fundamental change in the Complainant’s role going to the heart of her contract of employment and that this treatment resulted from her disability. I believe her disability and her medical leave are inextricably linked. In the circumstances where the claim is that her contract has been broken because of her disability there is no need for an actual comparator but I am considering whether discrimination took place in accordance with section 6 (2) (g).

4.1.3 The Respondent contends that the Complainant was not dismissed. This issue is appropriate to be dealt with in the substantive case rather than as a preliminary issue.

4.1.4 The Respondent refers to the Complaint Form which purported to claim that the Complainant was also the victim of alleged discrimination on the grounds of family status, and contends that this goes fundamentally to the credibility and bona fides of the complaint. I note that this claim was withdrawn at the commencement of the Hearing.

Harassment

4.2 In relation to the claim of harassment I found the evidence provided by the Claimant at the Hearing persuasive. This oral evidence is supported in particular by the email dated 3 April 2014 from the Claimant to Ms. S. It is not disputed that this email was received. In the email the Claimant details her account of the various interactions between herself and Ms. S which were the cause of concern. These include; lack of updates on HR priorities on her return from medical leave; the hiring of Ms. KL; the background to the hiring of Ms BG and the level of the appointment; HR reporting lines and budgetary implications as a consequence of these new appointments; the European meeting; the elimination of the Complainant’s role and the link with her absence on medical leave and the emotional effect that this had on her. The Complainant asked for clarity on these matters in particular in relation to a) the detail of her new role or b) if her post was to be eliminated how this would proceed. If the statements made by the Complainant in this email were an untrue record of what had transpired I would have expected Ms S to refute them in writing and to pass on the email, together with her response, to another appropriate member of Senior Management. Whether or not proposed reorganisation of responsibilities was in fact being contemplated by the company, with the possibility of the Complainant’s post being made redundant, it is clear from this email that Ms. S had informed the Complainant that this was the case and that there was a link between these changes and the Complainant’s absence. This conduct formed a pattern over a number of meetings/interactions between the Complainant and Ms S. I conclude therefore that the Complainant was harassed due to her absence on medical leave which in turn was inextricably linked to her disability.

4.3 The Respondent has submitted that in the event that Ms S was responsible for the harassment of the Complainant that the Respondent relies upon the defence in section 15(3) of the Acts which states;

In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee---------

(a) From doing that act, or

(b) From doing in the course of his or her employment acts of that description

The Respondent did not produce evidence of an equality policy or a policy specifically dealing with harassment. It was made clear in the case of, Piazza v Clarion Hotel (DEC-E2004-033), for the employer to rely on section 15(3) the policy should be a dedicated policy on harassment and that employers should not rely on a standard grievance policy. Furthermore, the Respondent provided no evidence of having investigated the complaint made by the Complainant’s solicitors on her behalf. The discussions regarding a severance package were in fact an attempt by the company to resolve the matter without formal investigation into the matters raised. Having such discussions effectively put any investigation on hold but did not remove the obligation on the employer to conduct an investigation should this alternative not be successful. Accordingly, I conclude that the Respondent cannot rely upon the defence in section 15(3) and find that the Complainant suffered harassment related to her disability.

Reasonable Accommodation

4.4 The Complainant contends that the Respondent failed to provide reasonable accommodation to her insofar as she was expected to be available during her medical leave and to manage and distribute her work including recruiting a replacement for a member of staff going on maternity leave. While I accept that Ms S did seek to have the Complainant available to discuss work matters during her medical leave these discussions did not in fact take place and neither did the Complainant recruit the replacement referred to. The Complainant was paid in full by the Respondent during this leave. The Respondent accommodated the request for partial return to work and no further request for accommodation was made. I therefore conclude that the Respondent did provide reasonable accommodation.

Victimisation

4.5 The Complainant contends that having raised a grievance on 3rd April regarding the issues surrounding her period of medical leave she was victimised in accordance with Section 74(2)(a) of the Employment Equality Acts. Section 74(2)(a) states;

For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith----------

(a) Sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

The Complainant did not make a claim of discrimination to her employer until 23 April 2014. The only victimisation which is claimed to have occurred after that date is failure to reply. I do not accept that there was such a failure as the Respondent engaged with the representatives of the Respondent to discuss a potential severance package. These discussions took place in the context of the matters raised in the letter of 23 April. I therefore conclude that no victimisation occurred.

Dismissal

4.6 The Complainant contends that she was constructively discriminatorily dismissed insofar as the conduct of the Respondent, through the actions of Ms. S, was so unreasonable that the Complainant had no alternative but to tender her resignation. Furthermore, the Complainant contends in circumstances where it was communicated to the Complainant that her position was to be made redundant despite there being no basis for the redundancy that the breach of contract test for constructive dismissal is also satisfied.

Section 2(1) of the Act defines a dismissal as including:

“the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so …”.

This definition is practically the same as that contained at s.1 of the Unfair Dismissals Acts 1977–2007 and the authorities on its application in cases under that Act are relevant in this case. There are two tests, either or both of which may be invoked by an employee. In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

The contract test was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332 as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”.

Not every breach of contract will give rise to such repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

4.7 In relation to the “contract” test the Complainant contends, in circumstances where it was communicated to the Complainant that her position was to be made redundant despite there being no basis for the redundancy, that the breach of contract test for constructive dismissal is satisfied. Ms. S, in her initial interactions with the Complainant subsequent to her medical leave, undoubtedly left her unsure as to her future with the company. However, in subsequent dealings with the Complainant, the Respondent was clear that her post was not to be made redundant. The discussions in relation to severance arose from a discussion initiated by the Complainant with Mr. KC on 8th April and were pursued as an alternative to dealing with the issues raised in the Complainant’s letter of 23rd April, rather than because the Complainant’s post was to be made redundant. The Respondent was entitled to reorganise work and reporting arrangements as it deemed necessary to meet the needs of the company and was not obliged to provide the Complainant with the same tasks as she had hitherto carried out. She was not required to undertake any additional functions. I therefore, conclude that the “contract” test is not met as no breach took place that went to the root of the contract.

4.8 In relation to the “reasonableness” test the Complainant also contends that she was constructively discriminatorily dismissed insofar as the conduct of the Respondent, through the actions of Ms. S, was so unreasonable that the Complainant had no alternative but to tender her resignation. Harassment is not necessarily sufficient of itself to sustain a claim of constructive dismissal. What is significant is the employer’s response to such claims. In this instance the Complainant’s email of 3rd April, in which she outlined to Ms. S the problems she had with the treatment she was receiving from Ms. S, was in fact an attempt to deal with the problems in an informal way i.e. directly with the person rather than invoking a formal procedure. This accords with good practice in dealing with such problems. The first formal initiation of a grievance was contained in the letter of 23rd April sent by the Complainant’s representatives. The Respondent has argued that the Complainant should have used the Grievance Procedure. In Karolina Jabczuga v Ryanair Ltd – UD 66/2013 the Tribunal noted;

“An employer is, of course, entitled to lay down a procedure whereby a grievance is brought to its attention... However, this structure should not be entirely inflexible. If a complaint is made and it is clearly employment related, it ought to be treated as a grievance. At the very least, inquiry ought to be made as to whether the complaining employee wishes the complaint to be treated as a grievance.”

I therefore conclude that the grievance was formally initiated on 23 April. In Karolina Jabczuga v Ryanair Ltd the Tribunal made it clear that a Complainant must ‘fully engage with and exhaust the grievance procedure available to her” prior to her resignation. A claimant is
obliged to act reasonably“by affording his or her employer an adequate opportunity to remedy any grievance”.

When the grievance was formally lodged on 23rd April contact was made the next day by Mr CK and discussions commenced with the Complainant’s representatives on the possibility of a mutually agreeable severance package which would have resulted in the Complainant resigning and the various claims in the grievance not being pursued. Both parties were fully aware of, and agreeable to exploring this alternative, which had therefore the effect of parking the investigation of the grievance until the parties had concluded their efforts to reach an agreement. There is nothing to indicate that a deadline had been put in place by which the process would have be concluded or abandoned.

A discussion between the representatives of both parties took place on 29th April which did not result in agreement. In evidence Mr KC stated that he did not believe that this meant the end of the process. In the Complainant’s letter of 4th June to the Respondent in paragraph 4.iii the Complainant’s representatives confirm that Mr KC indicated that he would respond but that no response was forthcoming. In any event, without further notice, the Complainant tendered her resignation on 12th May.

The Complainant was a senior professional Human Resources Manager with responsibility in the company for producing various policies and procedures for the Respondent in areas such as Grievance Handling, Equal Opportunities, and Bullying and Harassment. She was therefore familiar, or should have been familiar, with the options open to her for dealing with the issues which were causing her concern. It is clear, notwithstanding the fact that the grievance was lodged on 23rd April, that the priority for both parties was the pursuit of the alternative possibility of an agreed severance package. There are differing views as to whether this attempt had stalled or failed on 29th April. In this regard I note the evidence of Mr KC that he did not believe the efforts at reaching an agreement on a severance agreement to have been exhausted on that date. In any event, the 29th April is the earliest date on which the process of investigating the grievance could reasonably expected to have been commenced. I do not believe, with her professional knowledge of the options open to her, in tendering her resignation 13 days later, and without any further correspondence or communication in the interim, that the Complainant afforded the Respondent adequate opportunity to investigate the complaint. I conclude therefore, that the Complainant was not constructively dismissed.

5 DECISION

5.1 I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:

· the Complainant has failed to establish a prima facie case of victimisation in relation to conditions of employment on the disability ground and

· the Complainant has failed to establish a prima facie case that the Respondent failed to provide reasonable accommodation and

· the Complainant has failed to establish a prima facie case of discriminatory dismissal in relation to conditions of employment on the disability ground and

· the Complainant was subjected to harassment on the disability ground in breach of Section 14(A)(7) the Act.

5.2 In accordance with s.82 of the Act, I order the Respondent pay the Complainant:

The sum of € 62,000 (the equivalent of 26 weeks’ pay) in compensation for the harassment on grounds of disability

In addition, I direct the Respondent to prepare a comprehensive Equality policy including appropriate procedures for dealing with complaints of harassment and to ensure that all staff are adequately trained in these procedures.

5.3 The total award is redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.

____________________

Shay Henry

Adjudication Officer/Equality Officer

20th January 2016