Complainant

Respondent

Parties

Patrick Jordan

Irish Prison Service

Representatives

None

Aoife Carroll, BL instructed by the Chief State Solicitor’s Office

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00012113-001

25th June 2017

The complainant asserts that he was discriminated against on grounds of disability when the respondent refused to accept periods of sick leave as an injury at work arising from workplace stress and bullying; the respondent denies the claim.

The complainant outlined that he incurred sick leave because of work-related stress and bullying on various dates. He sought for this sick leave to be considered ‘injury on duty’, thereby not adversely affecting his sick leave record. He said that written allegations were made against him in December but only provided to him as a result to the FOI request.

The complainant outlined that the respondent requests an officer to obtain a psychiatric consultation for ‘injury at work’ sick leave arising from work-related stress. A GP’s report was not sufficient. The complainant referred to the Circular on mediation in the public sector, but the respondent refused to implement this. He wanted this matter mediated by the Workplace Relations Commission but the respondent withdrew from the process at short notice.

The complainant outlined that he has sought further additional medical documentation from his doctors in reply to the respondent’s request. He also sought referral to the respondent’s Chief Medical Officer. He had not sought certification of the January and February 2017 absences because he thought he could soldier on, but the incidents went on beyond that. He did not go to a doctor as he genuinely believed that a stiff upper lip would lead to this being resolved. He said that one tries to put things to bed quickly and to avoid making mountains of mole hills.

The complainant spoke to the respondent and a designated support officer, who was later transferred. He described the respondent’s support as scant. He was not asked if he was OK and it was clear that his work was suffering. He had to fight tooth and nail to get the copy of the complaint even though the dogs in the street knew of the complaint. He did not know what the formal procedure provided for but natural justice meant that the complaint should have been forwarded to him. The complaint was not actioned at all and he heard only the “whispers on the street”. The complainant said that he has now dealt with the demons, but they would have been dealt with sooner had the respondent acted better. He now wanted to put things to bed.

The complainant outlined that he had a very bad case of work-related stress ten years ago following a very serious incident with a couple of prisoners. He was diagnosed and out for some time. He commented that this was thankfully now well and truly healed.

The complainant said that he wanted periods of absence in 2017 to be recorded as injury on duty. He could not say whether a respondent officer was previously recorded as injured on duty due to inter-personnel difficulties. The complainant compiled the catalogue of incidents, which denigrated his standing in the job amongst staff and prisoners. When the colleague ignored the complainant bidding her “good morning”, this made prisoners wonder what was going on. There were rumours that diminished his standing amongst colleagues. This continued unabated and this was why he took this case.

In cross-examination, items of correspondence were put to the complainant. He was referred to the colleague’s complaint of the 18th December 2016. This colleague was informed that her complaint did not fall within the Dignity at Work policy. In reply, the complainant said he was not aware of this at the time. It was put to the complainant that he took uncertified sick leave on 25th January and the 28th February 2017 and he did not inform the respondent why he took this sick leave; he agreed that this was the case. It was put to the complainant that the letter of the 4th May 2017 was the first time that he raised the sick leave issue. It was put to the complainant that on the 14th March 2017 the respondent informed him that the complaint made against him did not fall within the Dignity of Work policy; he replied that this letter does not address his issues. It was put to the complainant that the letter of the 16th May 2017 replied to his letter of the 4th May 2017 and stated that the two days of sick leave could not be considered as “injury on duty”. The complainant said that there were various letters in May and June regarding the issues of sick leave and the Dignity at Work complaint. He was not sure if he replied to the respondent’s letter of the 6th June 2017. He was so traumatised that he did not reformulate his complaint.

It was put to the complainant that his complaint of bullying was vague and imprecise; he replied that his submission was very clear, giving dates and times. While he did not take this up with a named member of the respondent Staff and Corporate Services Directorate, he raised it with others. It was put to the complainant that the later correspondence deals with other days of sick leave, which post-dated his complaint to the WRC; he replied that if they did, they formed part of a continuum. It was put to the complainant that in August 2017, he wrote to have additional days considered as injury of work and submitted certificates; he agreed and had submitted his appeal on the 3rd September 2017. It was put to the complainant that the respondent letter of the 20th September 2017 sets out the requirement for a consultant psychiatrist to certify “significant psychological harm”; he replied that he was not then under the care of a psychiatrist.

In respect of the referral of 3rd October 2017 to the Chief Medical Officer, the complainant said that the letter from the specialist may have been sent to the CMO, who ignored him completely. It was put to the complainant that the CMO has not issued a determination and as matters stood, he has submitted no medical evidence in relation to the January and February sick days. There were only GP certificates in relation to July and August. The complainant accepted this and said that the psychiatric evidence was in hand. It was put to the complainant that he did not reply to the letter of the 6th June 2017; he replied by saying he made a detailed submission in May which was “good enough”. It may have been his oversight in not replying to the letter of the 6th June 2017.   It was put to the complainant that there was a meeting between the complainant, the line manager, the union and the colleague to resolve this issue; he replied that this took place months previously.

In further submissions and in relation to the question of negligence, the complainant asked where the negligence was on his part. In respect of a breach of fair procedures, the respondent had concealed the complaint made against him and he became aware of it through a Freedom of Information request. Throughout all this, management should have asked the complainant if he was okay. The complainant said he clearly raised workplace bullying and gave management all the information he could regarding the incidents. All he sought was the days recognised as “injury at work”.

The respondent denies the claim and asserts that there has been no breach of the Employment Equality Acts. It asserts that the only issue within the ambit of the adjudication is the sick days taken by the complainant in January and February 2017. The later periods of sick leave post-date the complaint. It asserts that the respondent has policy to determine eligibility for sick leave arising from occupational injury. Where the occupational injury is stress or a psychological injury, section 4.9 requires a report from a consultant psychiatrist. It refers to principles elucidated from the case law of the Irish Superior Courts regarding actionable workplace stress and bullying claims.

The first member of the respondent Staff and Corporate Services Department gave evidence. She outlined that as the colleague only raised one incident of ill-treatment, this could not amount to a Dignity at Work complaint. No further action was taken and the matter was resolved locally. She outlined that the complainant did not make a formal complaint. He made a statement regarding injury on duty, saying that he had been badly treated on several dates. She wrote to the complainant to say that this was not a Dignity at Work complaint.

The witness outlined that they examine all complaints very seriously and looked at the precise details. Complaints had to be clear and contain details and witnesses. They could appoint a Designated Person to deal with a complaint. In this case, there were stand-alone incidents and not specific allegations of bullying. There was no concrete information as to where bullying occurred. They did not consider this to be harassment as there was no reference to any one of the nine equality grounds.

In cross-examination, the witness said that she sent a copy of the Dignity at Work policy to the complainant. It was put to the witness that the letter of the 4th May 2017 gave details of what happened and who was there, even if it was not on the proper form. It was put to the witness that the complainant was clear that he had been subjected to bullying and the employer’s response was appalling; she replied that they take every complaint very seriously. They scrutinised them and asked for more information and precise details, where necessary. She said that the complainant’s May letter did not include concrete information about the bullying allegations. There was no request to engage in workplace mediation and this requires the consent of both parties.

The second witness from the respondent Staff and Corporate Services department gave evidence. He dealt with attendance management and applications for injury on duty. This primarily relates to physical injuries as opposed to mental health issues. Section 4.9 of the “Occupational Injury or Disease” policy document provides for situations where there is significant psychological harm linked to the workplace. The Chief Medical Officer does not accept self-referrals and does not consider self-certified leave. The witness outlined that the complainant’s applications were based on GP certification and were, therefore, refused. The complainant’s appeal was referred to the CMO, who sent a doctor-to-doctor form, requesting information from a specialist. The witness had no further information from the CMO and the process is not yet finalised. Once this happens, the CMO will review all the documentation and decide whether it meets the test set out in section 4.9. This would bind the respondent in most instances, but they would look at the issue of bullying and harassment. The officer would have to show that the injury is serious and linked to the workplace.

In cross-examination, it was put to the witness that the policy treats physical and psychological injuries differently. The complainant had to go to a consultant, incurring expense. The CMO review was also not binding and this may fall back to the respondent. In reply, the witness outlined that the CMO does not decide what is an injury on duty and this is a matter for management

In closing submissions, the respondent outlined that this is an Employment Equality complaint and the question was whether there was discrimination on the grounds of disability. This is not a forum for general complaints and the adjudication had a narrow statutory function. The core of the complaint is that there was a failure to recognise certain sick leave days as injury on duty and that this constitutes discrimination. The complainant has not identified any difference in treatment and it is clear from the correspondence that he has been dealt with in accordance with the documentation. The complainant has misunderstood how workplace stress is addressed in Irish law. The Superior Courts have applied a three-stage stage for psychiatric injury arising from the workplace (Maher v Jabil Global Services Ltd [2008] 1 I.R. 25, as affirmed by the Supreme Court in Berber v Dunnes Stores Ltd [2009] IESC 10). The respondent policy is consistent with the test formulated by the Superior Courts. In Quigley v Complex Tooling and Moulding Ltd [2009] I.R. 349, Fennelly J. said that the injury must be an identifiable psychiatric injury and this is the standard contained in the respondent policy.

The respondent outlined that there was no medical evidence regarding the January and February absences. It would be significant if someone could take a self-certified sick day with no medical certification and avail of injury on duty, especially where they had not visited a doctor at the time and only raised this later. While there was identical medical certification for the days taken in July and August, the respondent submitted that work-related stress is not a psychiatric injury. It stated that depression and adjustment disorders have been held to be psychiatric illness, while work-related stress is not. The respondent outlined that this matter has now been referred to the CMO and the complainant accepted that he had not attended a consultant psychiatrist in July and August 2017. Any report would, therefore, be retrospective. The complainant has not supplied this evidence, although it may have been exchanged between doctors.

The respondent submitted that even if the complainant shows he has an injury, he must further show that this is linked to the workplace. He was asked to make a formal complaint and his correspondence did not amount to such a formal complaint. As set out in the second limb of the test in Maher, there was no evidence of a link to the workplace. The respondent submitted that it would be an unusual for a person to recover where they have not met the test for work-related stress as laid out in the superior courts. There is a clear policy on injury on duty which the respondent complied with. There can be no finding of discrimination in these circumstances. The complainant said that he wants the days as “Occupational Injury or Disease” (OID) days and this is outside the scope of redress that can be awarded under section 82 of the Act. The respondent submitted that in the case of Prison Officer v Minister for Justice, Equality and Law Reform (DEC-E2007-025), the officer showed evidence of her depression. The decision of the High Court in Glynn v Minister for Justice, Equality and Law Reform [2014] IEHC 133 sets out the difference between work-place stress and occupational stress.

At the outset of the adjudication, I confirmed with the complainant and the respondent that they were aware I had previously heard a case between the same parties (DEC-E2016-154). This related to separate issues to the ones raised in this adjudication.

The complainant has worked for the respondent since 1989. He is in a management position in the District Office, and it is in this capacity, that both he and a colleague submitted complaints about their interactions. The colleague’s complaint made pursuant to the Dignity at Work policy was submitted in December 2016, and the complainant’s in May 2017. The complainant did not know of the colleague’s complaint at the time of his complaint. The respondent stated that the complaints should be addressed locally and held that they did not fall within its Dignity at Work policy.

The complainant appealed the decision not to proceed with his complaint and the decision not to count the two days of sick leave in January and February 2017 as “injury on duty”. He took two further periods of sick leave: 12th & 13th July 2017 and the 17th July to 5th August 2017.

S.I. 124/2014 governs sick leave in the public sector, including in the respondent’s workforce. This allows for self-certified sick leave. The complainant availed of self-certified sick leave on the 25th January and the 28th February 2017. He states that this sick leave was necessary following his interaction with the colleague. He describes a series of events, which he says constitutes bullying. He later asked the respondent to count these days as absences arising from an injury at work. He sought to avail of the respondent “Occupational Injury or Disease” policy, which, inter alia, provides for sick leave arising from stress and psychological injury under certain conditions. Section 4.2 requires that certain information and evidence be gathered about the event leading to the injury. Section 4.9 addresses claims arising from stress and psychological injury. The policy is obviously centred at addressing situations where officers suffer injuries, physical and/or psychological, in their interactions with the client group.

The Employment Equality Act defines disability as follows:

“disability” means—

(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.”   

In respect of whether the complainant had a disability within the ambit of the Act, the respondent referred to principles arising from the above-referenced case law as guidance in cases of workplace stress or psychiatric injury.

Section 6 of the Employment Equality Act provides as follows:

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”)

In Valpeters v Melbury Developments Ltd [2010] E.L.R. 64, the Labour Court set out the burden of proof in claims of discrimination as follows:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” 

The respondent “Occupational Injury or Disease” policy sets out the steps an employee must take for sick leave to be counted as arising from an injury at work. It provides specific, additional steps where the injury is stress or a psychological injury. This includes the provision of a report from a consultant psychiatrist. In the circumstances of this case, it is not necessary to consider whether this is discrimination between types of disability, i.e. between physical and psychological.

In this case, the complainant availed of self-certified sick leave for the January and February 2017 sick days. He later sought for these two days to be counted as arising from an injury at work. He has no medical certification regarding these two absences. There can be no discrimination on the disability ground where the complainant took self-certified leave. The respondent did not accede to the complainant’s application and acted within policy.

While two periods of sick leave arose after the submission of the complaint to the WRC, the respondent addressed them in evidence and submissions. I, therefore, make findings in relation to the periods of sick leave of the 12th & 13th July 2017 and the period of the 17th July to the 5th August 2017. The complainant and respondent engaged in correspondence about these periods of sick leave. As of the date of the adjudication, this correspondence was in train, with medical documentation submitted to the Chief Medical Officer. It is a matter to be brought to conclusion. There is no act of discriminatory treatment and nothing that suggests discrimination.

Taking these findings together, I conclude that the complainant has not made out a prima facie case of discrimination and the complaint is not well founded.

CA-00012113-001

For the reasons set out above, I do not find in favour of the complaint made pursuant to the Employment Equality Act and I deem it to be not well founded.

Employment Equality Act / disability

Workplace stress

Valpeters v Melbury Developments Ltd [2010] E.L.R. 64