EDA1819

His complaints are summarised under various headings as follows:

• 
  1.Failure by his employer to make reasonable accommodation for his request for a move to another work area despite knowledge of the ongoing difficulties with his line manager, his health background and a recommendation by Medmark that it would be to his benefit to move positions.
  

  2.Abuse of medical referral process, including exaggeration of his disability to a serious mental illness in a medical referral to Medmark in December 2014.

  3.Lack of urgency in investigating his complaint against his line manager.

  4.Putting him at a disadvantage for potential promotion by creating a job description which blatantly excluded his area of expertise, despite this being a key function of the unit concerned.

  5.Treating him less favourably than a colleague in terms of application of disciplinary procedure. Summoning him to a disciplinary meeting on 22nd October 2015 but his excluding his colleagues who were directly involved in the matter.

  • 
    6.Treating him less favourably by not conducting ‘return to work’ meetings after sickness absence until requested by him and abdicating line manager responsibility for this on the grounds of the “sensitive nature” of his condition.

He alleges he was victimised by his employer after making known his intention to make a complaint to the Equality Authority and following the making of a formal complaint against his line manager. The victimisation took the form of :

1.The respondent’s attempts to subject him to a disciplinary process based on a flawed investigation of his complaint, resulting in a flawed Investigation Report.

2.The victimisation persisted despite representations from his solicitor that he would seek an injunction to prevent the process going ahead.

Finally, he alleges that there were serious breaches of company policy which deprived him of his right to natural justice. He itemises those breaches as follows: -

1.Lack of understanding of organisational bullying and harassment policy and procedure by his line manager.

2.Lack of understanding and misinterpretation of organisational bullying and harassment policy and procedure by the external investigator appointed.

3.Failure by his employer to recognise and address the mis-application of organisational bullying and harassment policy and procedure policy.

4.Failure by his employer to act reasonably when making decisions and to provide reasons for those decisions.

5.Failure by his employer to apply policy and procedure in a fair and objective manner.

6.Failure by his employer to provide a duty of care to me and comply with health and safety requirements.

7.Failure by his employer to provide a right to natural justice.

The Respondent rejects the complaints.

Background

The Complainant has worked for the respondent since 2000. He was first employed as a temporary Clerical Officer and from 2001 as an Executive Officer. He was subsequently appointed to the grade of Higher Executive Officer following a further promotion in 2004.

In 2010 he was assigned to work in the Programme and Regulatory Unit and was given responsibility for administration of roadworks consent applications submitted to the NRA by telecommunications companies. He was subsequently (August 2015) transferred to the Road and Tunnel Safety Division of what by that time was called Transport Infrastructure Ireland.

During this time he experienced several bouts of ill health that caused him to be absent from work on a number of occasions. Following one such period of illness he returned to work on 18 November 2014. On 2 December 2014 he was informed by a work colleague that a senior member of staff Mr G.L. had informed her that the reason for his recent absence from work was because he “had a breakdown because of work.”

He reported the incident to Management and a number of meetings to discuss the alleged comment followed. He subsequently decided to make a formal complaint against Mr G.L. under the Bullying and Dignity at Work Policy. He opted to have the complaint dealt with through formal procedures.

That procedure requires that an independent person be appointed to conduct an investigation into the complaint. Such a person was appointed to undertake the investigation under agreed terms of reference.

The investigator conducted her investigation and concluded as follows:

• Having thoroughly examined the allegations and the circumstances of this complaint is the view of this investigation that this case, as a single issue case, based on hearsay, should not have proceeded to formal investigation.

  In light of the framing of ML’s formal complaint(FC) in the strongest, possible terms despite the allegation being wholly based on unfounded hearsay, and the unconvincing and seeming contrived nature of the evidence as outlined above, the investigation, finds, on the balance of probability, that the complaint is false and vexatious.

He was required to reply to the Report of the Investigator by noon on 6 July 2015 some 3.5 working days after receiving it. He also at that time expressed his concerns to Management regarding the possible disciplinary sanctions that might be taken against him.

Around this time he instructed his solicitors to review the Report and to correspond with the Respondent on his behalf seeking to have it set aside. Correspondence between his solicitors and the Respondent ensued.

The Complainant was absent from work through illness during the period that followed.

On his return to work Management decided to establish whether the Complainant was medically fit to proceed to the next stage of the internal procedures. It referred him to a specialist occupational health specialist which declared him medically fit to proceed. The respondent then invited by letter dated 22 October 2015 to a meeting on the 28^thOctober 2015.In the relevant part the letter stated:

• “… in accordance with TII’s Disciplinary Policy and Procedure, a copy of which is attached, you are now invited to attend a disciplinary meeting on Wednesday 28 October at 2pm to discuss the possible disciplinary action arising from the findings of the Report. As you are aware the Report determined that your complaint was not upheld and, in particular, that your allegations, as made, were “false and vexatious”.

  You will be given every opportunity to make full submissions in relation to all or any aspects of the issues arising from the Report, under the Disciplinary Policy and Procedure, before any decision will be made.”

The Respondent agreed to this suggestion. A review of the Report was carried out by an agreed independent person. She concluded in the relevant part as follows:

• The Investigation Report is incorrect in its conclusion that Mr Leahy’s complaint should have not proceeded to formal investigation.

  The terms of Reference had no provision for making a finding of “false and vexatious” and the Investigation Report should not have made this finding and

  A false and vexatious finding cannot be made in the absence of an investigation.

On the 20 April 2016 the Complainant submitted a complaint, detailed above, to the Workplace Relations Commission. It is that complaint that is now before this Court.

Preliminary Matter

Section 77(5) of the Act states

• (5) (a) Subject toparagraph (b),a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

The Complainant told the Court that the single act of discrimination or victimisation that occurred in that period of time arose out of the letter issued to him on 22 October 2015 which is quoted above.

Complainant’s Case

The Complainant submits that:

• 
  1. The conclusions of the Investigator’s Report were manifestly inconsistent with the evidence outlined in the body of the Report and should have been queried by the Respondent before it decided to invite him to a disciplinary hearing.

  2. The finding that the complaint was false and vexatious was not provided for in the Investigator’s terms of reference and should have been discounted by the Respondent on that basis alone.

  3. The body of the Report contains no examination of the Complainant’s motivation and accordingly the finding that the complaint was vexatious was arrived at without any evidential basis and in a manner that infringed his rights to a fair hearing and natural justice. He submits that the issue was never canvassed with him by the Investigator in the course of the investigation. He submits that as a consequence he was not on notice that such a finding was under consideration. He submits that accordingly his right to a fair hearing was denied him.

  4. He submits that he drew the Respondent’s attentions to the shortcomings in the report and asked it to defer proceeding with a disciplinary hearing until that matter had been dealt with. It refused to do so.

  5. He submits he sought an opportunity to appeal the finding but the request was denied.

  6. He submits that he was singled out for an invitation to a disciplinary meeting despite adverse findings against other people whose evidence had been found to not be credible.

He submits that for these reasons and in the context of previous events the Respondent’s decision to send him the letter of 22 October 2015 when viewed in its proper context constitutes discrimination and victimisation within the meaning of the Act.

The Respondent submits that the Complainant chose to make a formal complaint against another member of staff and opted to have it formally investigated. It submits that it dealt with the complaint in accordance with the procedures in place within the organisation. It submits that the Complainant agreed the Investigator and the terms of reference under which she was appointed. It submits that the Investigator conducted her business without interference from either side and issued her report and findings. It submits that the agreed procedures make no provision for an appeal against the Report or its findings. However it does make provision for the outcome of the report to be dealt with under the Disciplinary Procedure. It submits that the findings of the Investigator were serious in that she found that the complaint was both false and vexatious. It submits that it had an obligation to consider that outcome in the context of the next step in the procedure.

It submits that the letter of the 22 October was the next step in the procedure under which the complaint was made by the Complainant. It submits that the letter states"You will be given every opportunity to make full submissions in relation to all or any aspects of the issues arising from the Report, under the Disciplinary Policy and Procedure, before any decision will be made.”It submits that this formulation clearly indicates that no decision had been made what if any action was warranted arising out of the report. It submits that it further provided the Complainant with an opportunity to make full submissions in relation to all or any aspects of the issues arising from the Report.

It submits that inviting the Complainant to a meeting to make submissions on the issues arising from the Report amounts to affording him fair procedures.

It submits that the Complainant did not attend the meeting but instead made an alternative proposal to have the report independently reviewed which it accepted and acted upon. It submits that when that review reported it identified failings in the original Report which it accepted.

It submits that its behaviour in this matter amounts to the processing of a complaint under the terms of the agreed procedures in place and cannot and in fact does not amount to an act of discrimination or penalisation within the meaning of the Act.

Finally it submits that no other person had similar findings against them in the Report. It acknowledges that two other witness were found to have given evidence that the Investigator found not to be believable. However they were not found to have provided false evidence or to have behaved vexatiously. Consequently they do not amount to comparators for the purposes of this complaint.

Findings of the Court

The Court must decide whether an act of discrimination or victimisation occurred within the cognisable six month time limit set out in section 77(5) of the Act.

The Complainant submits that the single act of discrimination that occurred in that period of time took place on 22 October 2015 when the Respondent sent a letter to the Complainant requiring him to attend a meeting under the disciplinary procedure in place in the employment.

The Respondent submits that such a meeting was premature for the reasons set out above. He submits that he had indicated to Management his intention at an earlier date to initiate proceedings under the Act and had as a consequence been victimised by certain members of management. He further submits that the complaint he made against ML arose out of a reported act of discrimination he in good faith believed had been perpetrated against him. He submits that had he not had a disability and had he not believed the comment to have been made he would not have made the complaint and would not have been so unfairly dealt with in the Report of the Investigator. He submits that he was entitled to be dealt with fairly by the Investigator. He submits that when the Investigator went outside the terms of reference the Respondent was obliged to protect him against that unfairness. He submits that as the Respondent knew that the Report was flawed and yet nevertheless proceeded to progress matters with impunity it committed an act of discrimination against him.

The 1998 Act defines discrimination in the following terms:

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 insubsection (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,

Section 6(2) in relevant part states:

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

(a) n/a

(b) n/a

(c) n/a

(d) n/a

(e) n/a

(f) n/a

(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”),

(h)n/a

(i) n/a

Section 74 of the Act defines Victimisation in the following terms:

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

In this case the Complainant made a complaint against another employee. He chose to have the complaint dealt with in accordance with the relevant procedure. The Respondent processed the Complaint through that procedure and consulted with the Complainant at all relevant stages of the selection of the Investigator and the drafting of her terms of reference. They both then allowed the Investigator to conduct her investigation in accordance with the terms of the procedure.

The Investigator made a Report and issued findings and recommendations. The Report in its entirety was issued to the Complainant.

The procedure makes no provision for an appeal against the Report in any form. Instead it makes provision for the further processing of the matter through the disciplinary procedure. The Respondent progressed the matter to that procedure when it issued the impugned letter to the Complainant on the 22 October 2015.

That letter makes clear provision for the Complainant to raise any matter arising out of the report before any decisions are taken. A plain reading of that letter makes it clear that such matters are not restricted in any way. The Court finds that a plain reading of the letter makes it clear that it makes provision for the Complainant to raise any concerns he had concerning the conduct of the Investigator and the content of the Report. He did not attend that meeting but instead chose to have his solicitors make representations on his behalf detailing his concerns and suggesting how the matter might be progressed. Those representations were considered by the Respondent and acceded to. A review of the Report was commissioned. That review found that the Report was flawed and could not be relied upon. The Respondent accepted that finding.

Section 85A of the Act sets out the burden of proof in equality cases. It states:

85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The Labour Court has set out the test for determining whether this burden has been established in Southern Health Board v Mitchell[2001] E.L.R. 201. Here the Court adopted the following analysis of Article 2 of the Burden of Proof Directive on which the burden of proof is based. The Court stated: -

• …a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

This test has three stages: -

• 
  1. The complainant must prove the primary facts upon which they rely in alleging discrimination,

• 
  2. The Court must evaluate those facts, if proved, and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination,

• 
  3. If the complainant fails at stage 1 or 2 he or she cannot succeed. If the complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination.

• “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

• '(1) Pursuant to s. 63A of the 1975 Act, it is for the applicant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the applicant which is unlawful by virtue of Part II, or which, by virtue of s. 41 or 42 SDA, is to be treated as having been committed against the applicant. These are referred to below as “such facts.”

  (2) If the applicant does not prove such facts he or she will fail.

  (3) It is important to bear in mind in deciding whether the applicant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases, the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in.”

  (4) In deciding whether the applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

  (5) It is important to note the word is “could”. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts proved by the applicant to see what inferences of secondary fact could be drawn from them.

  (6) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s. 74(2)(b) of the Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within s. 74(2) of the Sex Discrimination Act: see Hinks v Riva Systems Ltd (22 November 1996, unreported).

  (7) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant, and if so, take it into account in determining such facts pursuant to s. 56A(10) SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

  (8) Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent.

  (9) It is then for the respondent to prove that he did not commit, or, as the case may be, is not to be treated as having committed, that act.

  (10) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.

  (11) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not any part of the reasons for the treatment in question.

  (12) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.'

These guidelines were subsequently adopted by the Court of Appeal for England and Wales inWong v Igen Ltd[2005] EWCA Civ 142.

Applying this test Court finds that the Complainant has not established facts that give rise to an inference of discrimination. The Complainant has established that he made a complaint regarding an alleged comment another employee had made regarding his absence from work which imputed to him a disability from which he did not suffer and did cause his absence from work.

The Respondent received and acted on that complaint. It processed it in accordance with the procedures in place in the Respondent Organisation. In doing so it complied meticulously with those procedures. It involved the Complainant at all stages in the selection of the Investigator and in the drafting of the terms of reference of the investigation for the investigation. When the Report was issued it checked that the Complainant was fit to deal with the matter through the relevant procedures.

In order to advance the matter it arranged a meeting to take place on 28 November 2015 and notified the Complainant of the requirement to attend that meeting by letter dated 22 October. In setting out the basis on which that meeting would be conducted it went to great lengths to inform the Complainant that he could name any submissions he chose to make on matters arising from the Report.

The Claimant’s contention that the Respondent should have set aside the Report before arranging that meeting is not supported by this Court. The Respondent was in receipt of the Report that had been prepared by an agreed investigator against an agreed terms of reference. It was a report that could not be dismissed or acted upon without giving the Complainant an opportunity to make submissions on it.

Had the letter of 22 October 2015 set out charges to be answered by the Complainant then this Court may have found merit in the Complaint. The Court takes the view that the Respondent could not have relied on the defence that it was complying with the procedure in support of such a course of action. The Court takes this view on the grounds that the first responsibility of the Respondent is to comply with the law and to take no actions that would constitute discrimination within the meaning of the Act. Complying with the procedure might constitute such an act of discrimination. Were it such, it would not avail the Respondent to say that it did not intend to infringe the Act and was merely complying with procedure. The Act prohibits all acts of discrimination whether intentional or not. Accordingly each action taken by the Respondent must be assessed on its effect and not on its intention. Accordingly if compliance with a procedure amounts to an act of discrimination then such an action is prohibited under the Act.

However in this case the Respondent conveyed no decision to the Complainant in the letter of 22 October. It merely required him to attend the meeting. In doing so it expressly stated in the letter that:

• "You will be given every opportunity to make full submissions in relation to all or any aspects of the issues arising from the Report, under the Disciplinary Policy and Procedure, before any decision will be made.”

This response by the Respondent to those submissions confirms that it had made no decisions that were in any way adverse to the Complainant when it issued the letter of 22 October 2017.

Based on this analysis the Court finds that the Complainant has not established facts that give rise to an inference of discrimination and accordingly has failed to make out a complaint of discrimination or victimisation within the meaning of the Act.

Determination

The Court finds that the complaint is not well founded. The appeal is not allowed. The decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
15 March 2018______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.