HSD166

The Complainant was employed by the Respondent as a lorry driver from 4^thSeptember 2005. His employment ceased in December 2015. He was required to attend a disciplinary hearing on 21^stApril 2015. He complained that this action by the Respondent was an act of penalisation by reason of having submitted claims pursuant to the Act on 16^thFebruary 2015.

Summary of the Complainant’s Case

Mr. Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of the Complainant submitted that the Respondent was in breach of Section 27 of the Act in that the following the referral of complaints under the Act the Complainant was subjected to a disciplinary hearing for having taken time off on the occasion of the premature birth of his child. Mr Grogan accepted that the Complainant did not have consent to take the time off however, he said such consent was not refused.

Summary of the Respondent’s Position

Mr Joseph L. Bolger, ESA Consultants, on behalf of the Respondent, denied that there was any connection between the complaints made under the Act and disciplinary hearing held on 21^stApril 2015. He stated that the hearing was held to consider the Complainant’s actions in notifying the Respondent on 9^thApril 2015 that his daughter had been born the day before and he was not coming in to work until Monday 13^thApril 2015. This occurred in circumstances where the Complainant had not provided any prior notification that he would be requiring such leave, nor had he notified the Respondent that his wife was expecting a baby.

Mr Bolger stated that the meeting on 21^stApril 2015 was arranged to discuss the Complainant’s failure to follow proper procedures, following which it decided that no sanction would be imposed on him for his actions.

Evidence

Evidence was given by the Complainant with the assistance of an Interpreter and by a Manager on behalf of the Respondent. The Complainant in his evidence stated that no disciplinary sanction was imposed on him for his failure to provide prior notice of his requirement for leave on the impending birth of a baby. He said that he had not provided prior notice of the due baby as there had been complications with a previous pregnancy and he wished to keep this one confidential.

Conclusions of the Court

The Law

Penalisation is defined by Section 27 of the Act as follows: -

• 27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.
  
  • (2) Without prejudice to the generality of subsection (1), penalisation includes—
    • (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,
      (b) demotion or loss of opportunity for promotion,
      (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
      (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and
      (e) coercion or intimidation

• (3) An employer shall not penalise or threaten penalisation against an employee for—
  
  • (a) acting in compliance with the relevant statutory provisions,
    (b) performing any duty or exercising any right under the relevant statutory provisions
    (c) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions
    (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions
    (e) being a safety representative or an employee designated undersection 11or appointed undersection 18to perform functions under this Act, or
    (f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.