ADJ-00007121

Complainant

Respondent

Anonymised Parties

A Phlebotomist

A Hospital

Representatives

Lars Asmussen BL instructed by      Seán Ormonde & Co. Solicitors

Patrick Troy IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00009564-001

06/02/2017

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

CA-00009564-002

06/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00009564-003

06/02/2017

The complainant was employed by the respondent as a phlebotomist from the 30th November 2006 until the 8th August 2016. She was paid a gross annual salary of €41,000. She is claiming that she was constructively dismissed contrary to the Unfair Dismissals Act, that she was harassed and discriminated against in relation to her conditions of employment on the disability ground and that the respondent failed to provide her with reasonable accommodation in accordance with the Employment Equality Acts. She is claiming that she is entitled paid annual leave under the Organisation of Working Time Act. The complaints were referred to the WRC on the 6th February 2017.

The complaints referred under the Employment Equality Acts, 1998 on the gender and age grounds were withdrawn at the hearing.

The complainant was employed as a phlebotomist in the respondent hospital. It was submitted that she performed well during her employment and was never subject to any disciplinary or sanctions prior to the events which led to her dismissal.

From the commencement of her employment with the respondent, the complainant worked alongside Ms. A, who initially worked as a phlebotomist and then she became the complainant’s manager. The complainant maintains that she was subject to bullying, harassment and threatening behaviour by her manager. The complainant said that she had made a number of complaints about her manager’s conduct to the laboratory manager Ms. B, but she failed to investigate the complaints.

On the 14th May 2013, the complainant suffered a needle stick injury while taking blood from a patient causing her left thumb to bleed. She followed the procedures and had to have her own blood tested but it would be a number of weeks before she could be given a full all clear. The complainant said she was shocked and distressed and was left in a vulnerable position.

On the 15th May 2013 the complainant attended work and she submits she was berated about the incident by Ms. A. She was shocked and distressed by Ms. A’s behaviour and she sought union assistance. She went to HR and then Occupational Health to make an appointment. The complainant went on sick leave on the 15th of May and she attended OH on the 22nd May 2013. She submitted medical certificates stating that she was suffering from stress and anxiety. The complainant said that she reported to the OH doctor about the needled stick injury and complained about being bullied by her supervisor. The OH doctor issued a report to the HR Director. On the 28th May 2013 the complainant wrote to HR and copying the Laboratory Manager, Ms. B making a formal complaint about bullying and harassment over a 6 year period and outlining her grievances against her supervisor Ms. A.

Ms. B, the Laboratory Manager wrote to HR on the 11th of June asking that the grievance be addressed as a matter of urgency. The complainant’s union wrote to HR on the 28th June asking that the grievance be acknowledged and enquiring the course of action HR intended to take. On 9th July 2013, the HR Director in a response to the union suggested mediation or that she submits a full account of the alleged bullying and harassment complaint and it would be dealt with in accordance with the Dignity at Work Policy. In response the complainant rejected the offer of mediation and asked for a full investigation of her complaint. The complainant said that she could not work with Ms A during the investigation and she sought a transfer to another part of the hospital.

On the 17th July 2013, the complainant was reviewed by the OH doctor again and a report was provided to HR stating that the work situation was stressing her. On the 3rd of September 2013, the complainant wrote to the HR director setting out a detailed account of her complaints against Ms. A. She requested that her complaints be investigated by an independent investigator. She also reiterated that she wished to be transferred to an alternative role outside the department where she would not have to interact with Ms A while the investigation was underway. The complainant details the alleged bullying, harassment, threatening behaviour humiliation and isolating misconduct allegedly perpetrated by Ms A. These complaints against Ms A included instances of bad attitude, passive aggressive behaviour, ignoring the complainant, and abusive behaviour. The complainant identified witnesses to the bullying and harassment and set out dates and times of the incidents. The complainant was notified by the HR director on the 12th of September 2013, that her grievances would proceed to investigation. The HR director met with the complainant on the 25th of September 2013, to discuss the investigation, her possible transfer and return to work.   She provided him with a CV and the option of transferring to a different department was discussed. He suggested that she could transfer to a data entry role, but she refused this role as it would amount to a demotion. HR agreed to investigate other roles for her. She was then offered the role of health care assistant which was a demotion and unacceptable to her.

There was a delay in progressing the investigation, but eventually an external investigator was appointed and the terms of reference were agreed on the 30th January 2014. The complainant was interviewed by the Investigator on the 4th February 2014. The complainant was informed in April 2014 that her sick pay was due to run out and in June she was off pay.

On the 8th of April 2014, HR wrote to the complaining advising her that are sick pay entitlement was due to expire are the 1st of June 2014. They told her that there were two positions available, one in the phlebotomy department and the other as a healthcare assistant (HCA). The complainant told them she could not accept the position in the phlebotomy department as the manager, she alleged bullied and harassed her, was still working there. The parties then discussed the possibility of a transfer to a role as a medical secretary and different grades in the in the hospital. HR undertook to send the complainant internal advertisements and to follow up on the medical secretary role. The complainant did a number of interviews within the hospital for various medical secretary roles, but was unsuccessful.

In November 2014, HR in a letter to the complainant, advised her of the outcome of the investigation. The investigator found that none of the complaints could be upheld due to a lack of collaborative evidence. The investigator set out 5 recommendations and advising that the complainant’s return to work in the phlebotomy department could be achieved through mediation. He could not recommend a transfer to another department because he didn't not know if a transfer was an option. He recommended an internal review of the phlebotomy department to examine staffing structures duties and responsibilities. The complaint said that she was not afforded an opportunity to appeal the findings of the investigation. The complainant said that she rejected the mediation offer as she could no longer work with her manager.

The complainant maintains that the respondent’s delay in initiating, conducting and finally concluding the investigation into her grievance and publishing the report, which took in total 19 months from the date of the complainant's formal complaint, was completely unacceptable. The complainant maintains that the respondent failed to afford her fair procedures in carrying out the investigation, in that she was not afforded a full opportunity to read witness statements and she was not given an opportunity to appeal the findings of the investigation. She maintains that the findings and recommendations of the investigation were fundamentally flawed unfair and unreasonable.

On the 9th of December 2014, the complainant wrote to HR regarding the investigation and informing them that she was still not able to return to the phlebotomy department. In an email dated 12th December 2014, HR told the complainant that there were 3 administration posts advertised and all applications had to be in by 17th December 2014, however, HR failed to reply to the substance of the complainant’s email to them. In an email dated 23rd January 2015, HR informed the complainant that her position in the phlebotomy department was her substantive post and if she did not wish to return to it she would have to apply directly to recruitment for another position in the hospital. The complainant was seeking an internal transfer within the hospital, but none was forthcoming. She was informed that there was no internal transfer policy in the hospital. On the 4th of June 2015 the complainant and her Union representative met with HR to discuss her return to work. She learned that there were interviews for two medical secretary posts and she informed HR that she would apply. On 5th June 2015, the complainant attended an interview for the post of medical secretary and she was informed a few days later that she was unsuccessful, but she had been placed on a panel pending vacancies in respect of same. Following further correspondence between the parties, the complainant was informed that there was a recruitment freeze, but she remained on the panel for any vacancies in that area.

On the 27th of June 2016, HR wrote to the complainant stating that her position in the phlebotomy department remained open. The letter went on to say that it is now over 3 years since she worked in the hospital and if he did not hear from her by the 1st of July 2016, the hospital would assume that she did not wish to return to her position in the phlebotomy department, it would be filled permanently and she would be processed as a leaver. The complainant said that she was shocked and distressed by this letter and she wrote to HR reminding them that she was on the panel for medical secretary. She asked them to rescind the letter, stating that her position as a full-time permanent phlebotomist in the hospital was not something she wanted to give up. She went on to say that's the reason for her sick leave still stood but if the respondent could inform her that the supervisor no longer works in the phlebotomy department she would happily return to work there. The hospital in response stated that they could not hold her post open beyond the 31st of July that are reasons cited for her not wanting to work there were fully investigators and her complaints were not upheld. The complainant then wrote to the respondent on 8th of August 2016 to give notice of a resignation from the position of phlebotomist in the hospital. The complainant said that she believed that the ultimatum given to her left her with no option but to resign.

It was submitted that the respondent gave an unreasonable ultimatum to the complainant to either return to the post in the phlebotomy department, to secure another post in the hospital or to take a career break.

Legal Submission

The complainant’s barrister submitted that she suffered from a disability within the meaning of the Act. He submitted that the condition suffered by the complainant comes within the definition of disability contained in section 2 of the Employment Equality Acts. The definition of disability has been interpreted in an extremely broad and in all-encompassing manner by the Equality Tribunal. In the case of Mr. O. v. A Named Company DEC -2003-0 52, it was held that work-related stress may amount to a disability. Further, as was suggested in the Labour Court case of A Government Department v. A Worker EDA 094, the de minimis rule applies and the condition must manifest in a minimal level of symptoms to be classified as a disability. It was submitted that in the case at hand, the complainant suffered from severe work-related stress and anxiety that caused her to be certified over a prolonged period of time as medically unfit to work. Therefore, the complainants condition comes within the definition of a disability under the Equality Acts.

It was submitted, that at all times the respondent was aware of the existence and severity of the complainant’s disability.  This was apparent in numerous letters, medical certificates, occupational health reports and conversations as well as being apparent through signs, symptoms and indications in the complainant’s job performance. It was submitted that the complainant has met the burden of proof. It is well accepted that there are a broad range of circumstances in which direct discrimination can arise in the conditions of one's employment. In An Employee v. A Broadcasting Company [2012] ELR 88 direct discrimination on the grounds of disability was found to have occurred in relation to the complainant's assignment of roles within the respondent company.

It was submitted that it has been well established that the treatment of the complainant, following her return or attempted return from sick leave, carry weight in the determination of whether the complainant was directly discriminated against on the ground of disability. I was referred to the Labour Court case of An Employee (Mr. OO) v. An Employer No 2 [2005] ELR 132, where the Labour Court found that the employer had failed to treat the employee in a sympathetic manner upon his return to work from a psychiatric illness and was instead intent on making his work working life difficult. On this basis, the Labour Court upheld the complainant's claim for constructive dismissal, despite the complainant never having raised the respondent’s grievance procedure.

It was submitted that the above decision is particularly relevant to the case at hand. In her attempts to return to work, the complainant was not treated in a supportive or sympathetic manner by the respondent and it was apparent that the respondent wished to make the complainant's return to work impossible. The respondent delayed in activating, progressing and concluding its grievance process into the complainant's bullying grievance against her supervisor, the very stressor that was causing the complainant's disability. Further, the respondent refused to accommodate the complainant by suspending her supervisor on full pay pending the outcome of the investigation, or transferring the complainant to a different department where she would not be exposed to her supervisor the cause of her stress. In fact, the respondent actively repeatedly sought to return the complainant to that very same department that was causing her the stress and issued her with an automation to return to the phlebotomy department or in the alternative to break her contract of employment. It is submitted that the above offers clear evidence of less favourable treatment of the complainant due to a disability and that this amounts to direct discrimination on the disability ground.

Legal Submission on Reasonable Accommodation

Section 16 of the Employment Equality Act requires employers to take a proactive approach in removing barriers and making adjustments to the work environment so that an employee with a disability can be accommodated in the work place. The employer is obliged to provide appropriate measures to accommodate the needs of a person with a disability by providing special treatment or facilities which would make them fully competent to undertake their duties. I was referred to the principles in Humphries v. Westwood Fitness Club [2004] ELR296, as to the nature of the enquires a respondent must undertake, before making a decision, which may be to the detriment of an employee with a disability.

In the case at hand, the respondent failed to conduct itself in a proactive manner in acquiring all relevant information and considering appropriate measures that might be necessary in order to allow the complainant to return to work from a period of sick leave. The respondent failed to consider its own Occupational Physicians recommendation that it swiftly move to resolve the interpersonal issues in the department, in order to allow the complainant to return to work. It failed to consider the possibility of suspending the supervisor on full pay pending the investigation of the grievance or transferring the complainant to a different department pending the investigation of the grievance and delayed the investigation and conducted it in an inept manner. The complainant was required to remain on sick leave as an internal transfer could not be recommended as the employer has no policy on the matter. The complainant was offered a transfer to the role of health care assistant, but this was a demotion. The respondent refused to consider any other internal transfer on the basis of a none existent policy, that is the complainant would have to apply for such positions via open competition. It is submitted that the respondent discriminated against the complainant in failing to provide her with reasonable accommodation and transferring her to a suitable posted outside the phlebotomy department. 

The complainant suffered a needle stick injury on 14th of May 2013, and was sent to the Department of Occupational Medicine (DOM) for review on the same day as per protocol. On 15th of May 2013, the complainant called to HR to complain about an alleged incident with her manager. She left work that day and was subsequently medically certified by her GP suffering from stress and anxiety. She had a DOM meeting on 22nd of May 2013, in relation to clearing her of any blood related complications arising out of the needle stick injury on May 14th. She also informed them of her allegations against her manager. She was informed by DOM that there are policies in place to deal with these allegations and that she should process her grievance through the relevant procedures. They subsequently updated the HR director about the complainant’s visit.

On 28th of May 2013, the complainant lodged a formal written complaint against her manager with the respondents HR department. In her letter, she alleged she had been subject to bullying and victimisation by her manager and requested an investigation be carried out in the strictest of confidence. On foot off a letter from the complainant’s union official dated 28th of June 2013, asking about the action the respondent was proposing to take in this matter, the HR director replied on 9th of July 2013, acknowledged the delay and offering to provide mediation between the complainant and her manager. In the alternative she could go the formal route and give a full detailed account of the complaint to include dates, witnesses etc in order for the complaint to be screened under the Dignity at Work Policy.   HR also proposed the complainant avail of the employee assistance programme.

HR offered the complainant mediation to resolve the issues with her manager, but the complainant turned down this offer and said she was going to pursue a formal investigation under the Dignity at Work Policy. The complainant delayed over 2 months before she submitted a more formal list of complaints of the matters she required to be investigated. The complainant was also seeking to work outside the phlebotomy department. It was difficult for HR to find suitable work for her, in that she was trained as a phlebotomist. To facilitate her in another role would mean that she would have to be trained in that role. On the 25th of September 2013, the respondents HR director met with the complainant and her Union official to discuss her return to work options. HR offered the complainant the role of health care assistant (HCA) in a different area in the hospital. However, the complainant refused this offer. The complainant also confirmed that she did not want mediation and that she wanted the matter formally investigated under the dignity at work policy. The respondent stated that the refusal of the HCA role by the complainant was disappointing as she was qualified for this role as she had previously worked there. If she had taken this role the respondent would have been able to integrate her into another area at the hospital. The complainant said that she would like to train as a perfusionist. Having investigated the training pathway for such a role on behalf of the complainant, HR concluded that, it was unlikely she would qualify for the training course in the UK.

The assistant director of HR was appointed to deal with the complainant’s case. An independent investigator was agreed between the HR and the complainant's union and she was notified of the appointment on the 17th of December 2013. The investigator sent the draft terms of reference to the Union for agreement. The Investigator conducted the investigation which was completed in November 2014. There were a number of witnesses interviewed, between 13 and 15 in all. Additionally, the complainant insisted that certain individuals were interviewed, one was abroad in Saudi Arabia and this took time to arrange, hence the delay in completing the investigation. The 34-page investigation report was sent to the respondent on the 11th of November 2014. The report concluded that there was a lack of evidence to support the complainant's allegations and therefore her complaints were not upheld. The report recommended that the complainant return to work in phlebotomy and this could be facilitated through a mediation process.

On the 26th of November 2014, the respondent outlined the report findings to the complainant and asked her to revert to them regarding the return to work recommendations and the proposed mediation. On 9th of December 2014, the complainant emailed the respondent to say she was not happy with the report's findings and she rejected both the findings and the mediation recommendation. The complainant did not seek to appeal the investigation findings contrary to what she stated in her submission. She indicated that she should not be expected to return to phlebotomy and that she should be transferred to an administrative post. The respondent inquired about which administration post she was interested in, but the complainant did not respond. On the 23rd of January 2015, the respondent emailed her a list of internal advertisements and advised her what was required in terms of employees moving between departments. The respondent does not have an internal transfer policy for employees moving from one grade to another, it is generally through open competition. On the 3rd of February 2015 the complainant emailed her CV to the respondent HR department to apply for administration team manager position. The complainant's application was unsuccessful due to the fact she didn't hold the relevant qualifications. The respondent also asked the complainant at that time for an update on her health status.

From the 24th February 2015, the complainant’s absence was not medically certified. On the 13th of March 2015, an update on the complainant’s medical condition was sought from her with a view to sending her for a medical assessment.   The complainant then enquired about a data entry post, but she was advised there were none available at that time. HR advised her that there were 2 posts available her phlebotomy post and a health care assistant post. She was advised that the HCA post would be a means of re-integrating her back into the hospital. The complainant declined the posts and said that she could no longer work with her manager in phlebotomy. It was submitted that at no stage the complainant sought reasonable accommodation because she had a disability.

In April 2015, HR sent the complainant a list of internal job advertisements and sought a meeting with the complainant to discuss her options. The complainant declined the meeting and enquired about the policy in relation to staff moving internally. HR replied stating that the respondent did not have an internal transfer policy and staff who wished to switch roles or departments did so through open competition. It was again indicated to her that her position in phlebotomy was still available to her and also there was a HCA post available for her.

At a meeting attended by the complainant and her union, HR again emphasised that either of the 2 posts were available to her, but she confirmed that she had no interest in either. HR advised her that she was applying for higher grades within the hospital for which she had neither the qualifications for or experience in and she would have a better prospect of success, if she applied for grade 4 posts, her position in phlebotomy was at grade 4 level. The complainant did not mention anything about having a disability at this meeting nor did she seek reasonable accommodation for any disability.

HR advised the complainant of grade 4 medical secretary positions which were in the interview process and asked the interview panels to interview the complainant. She was interviewed but she was not successful.

In July-August 2015, the respondent informed the complainant by email that she had secured a place on the panel for a grade 4 position as medical secretary and there was an exchange of email with her around potential roles and a recruitment freeze in the hospital at that time.

The complainant ceased communicating with HR for over 10 months despite HR sending her several advertisements for jobs. On 27th June 2016, HR wrote the complainant about her ongoing absence, her lack of communication and requested that she confirm her intention about a return to work by 1st July 2016. It was pointed out to her that the phlebotomy position was still available to her and that it was over 3 years since she worked in the hospital and if he did not hear from her, he would take it that she no longer wished to return to work and she would be processed as a leaver. The complainant responded stating that she was on a panel for grade 4 secretary since July 2015 and expressed shock at the content of the letter. The complainant’s union also wrote to HR seeking to rescind the letter. HR replied stating that the letter stood and requested clarification from the complainant about her intentions to return to work.

The complainant replied stating that she did not want to give up her permanent post in phlebotomy and she would return to work there if her manager no longer worked there. HR replied advising her that the respondent was not able to continue to hold the substantive post open for her beyond the 31st July 2016 and that she needed to either (i) return to work, (ii) secure another internal role, or (iii) avail of other options, for example a career break. In response the complainant raised the issue of the outcome of the investigation and her disagreement with it. In response HR replied outlining all the options given to her and again offering her the HCA post. On the 22nd July the complainant was informed that she had secured a position on the hospital wide panel for 6 months in the role of medical secretary.

The complainant did not respond and she resigned from her employment by letter dated the 8th August 2016 accusing the respondent of plans to break her contract of employment. HR in response to her noted that she had turned down a temporary employment offer in favour of holding out for a permanent post. The complainant was asked if she wished to proceed with her resignation and if she did she should confirm it by returning the appropriate completed resignation form.

The complainant responded stating that her resignation stood. HR wrote again to her explaining the reason for the letter of the 27th June was to get her to engage with the respondent after 10 months of no contact. He explained that her continued employment with the respondent was still available to her. Nevertheless, the complainant confirmed her resignation.

Legal Submissions

It was submitted by the respondent’s representative that the claims under the Employment Equality Acts are out of time. The complainant left her employment with the respondent on the 8th August 2016 and referred complaints on the disability ground on the 6th February 2017. It was further submitted that for discrimination to have occurred on the disability ground, that the complainant must have a disability on the last date of the alleged discrimination. The complainant stated in evidence that her disability was work related stress and anxiety.

It was submitted that the complainant had not got a disability after August 2015, as the complainant was working with another employer from that date until August 2016. Furthermore, she had not provided any medical certificates to the respondent from February 2015, despite several requests for an up-date on her medical condition and there was no evidence provided that she ever visited a doctor after that date.   It was submitted that on the basis, in the 6 months prior to the referral there were no alleged incidents of discrimination put forward by the complainant. I was referred to Martha Sacha v Seaview Hotel Limited DEC-E/2016/055 the Equality Officer stated that:

“Should I find the alleged incidents within the six months preceding the referral of the complaint not well founded, the earlier alleged incidents would be statute barred.”

It was submitted that in the instant case, no incident that falls within the 6 months preceding the referral of the complaint to the WRC is well founded. The respondent therefore submits that it must be first determined if any of the alleged incidents the complainant has put forward within the 6-month timeframe preceding the claim being lodged on 6th February 2017, constitute discrimination under the Act.

The respondent disputes that it discriminated against on the disability ground. At no stage was the respondent on notice that the complainant suffered from a disability during her employment, or that she required reasonable accommodation for a disability. The complainant never once argued that she had any disability in any correspondence and there was no reason to have the complainant assessed by the respondent’s OH physician on the disability ground. The first mention of the disability and the need for reasonable accommodation was at the hearing in the WRC. In all the correspondence with the complainant and her union representative, the focus was on getting the complainant back to work; work which she stated she was clearly able to do, just not with, or near, or under the supervision of her manager.

In such circumstances, the respondent submits that it was impossible for it to discriminate against the complainant on the disability ground given they had no knowledge of same.

It was submitted, that the case law in this area establishes that an employer needs to have constructive knowledge of an employee’s disability. In Connaught Gold Co-Operative Society v. A Worker EDA 0822 overturned a finding of discrimination on the disability ground, the complainant had depression. In its decision, the Court said that “there were no signs, symptoms or indications of the complainant’s disability” such that the employer had constructive knowledge of the complainant’s disability. In the instant case, the respondent argues that there were no signs, symptoms, or indications of the complainant’s disability.

I must now consider the complainant's claim that the respondent directly discriminated against her on the disability ground in terms of sections 6(1) and 6(2)(g) of the Employment Equality Acts in contravention of 8 of the Acts. The complainant alleges that the respondent failed to provide her with appropriate measures in accordance with Section 16 of the Acts. In considering the complaints, I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent.

It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the disability ground. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

"(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 her or her, it is for the respondent to prove the contrary."

Section 6(1) of the Employment Equality Acts provides:

"..... discrimination shall be taken to occur - 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')"

Section 6(2)(g) provides that as between any two persons, the discriminatory grounds are, inter alia:

(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"),

and

Section 8. -- (1) In relation to --

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

Section 8(6)(c) provides

without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one --

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

Harassment and Conditions under the Employment Equality Acts

The complainant is claiming that she was harassed and discriminated against in relation to her conditions of employment contrary to the Employment Equality Acts. The first matter I must consider is whether the complaint this complaint was referred within the statutory time limit for referring a complaint. The respondent has submitted that the complaint is out of time. Therefore, before deciding on the substantive issue I must be satisfied that the complaint is properly and validly before the Tribunal. Section 77(5) (6) and (6A) of the Acts, as amended, provides:

Section 77(5)(a) provides: “Subject to paragraph (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.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a)shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”

Section 77(6A) provides: “For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operates over a period, throughout the period,

The respondent submitted that the complainant’s complaints under the Employment Equality Act were referred outside the statutory time limits.

I note that the complainant was on sick leave from work from the 15th May 2013 and did not return to work after this date and resigned from her employment in a letter to the respondent dated 8th August 2017 and she referred this complaint to the WRC on the 6th February 2017. I note that after the complainant went on sick leave on the 15th May 2013 there were no further incidents of alleged harassment raised by her. Having examined the evidence, I am satisfied that no alleged incidents of harassment and discriminatory treatment falls within the 6 months preceding the referral of the complaint on the 6th February 2017. I find that the referral does not comply with the statutory time limit for referring the complaint. I have no jurisdiction in this matter and this aspect of the complaint is statute barred.

Reasonable Accommodation

Section 16 of the Acts provides:

16.—(1) “Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

Section 16(3) provides

"For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ''appropriate measures'') being provided by the person's employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability --

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

................

(4) In subsection (3) --

''appropriate measures'' in relation to a person with a disability --

(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person

might ordinarily or reasonably provide for herself or herself;"

The complainant submitted that she suffered from a disability within the meaning of the Act and that the respondent failed to provide her with reasonable accommodation to allow her to return to work after a period of sick leave. It was submitted on behalf of the complainant that she suffered from severe work-related stress and anxiety, that caused her to be certified over a prolonged period of time as medically unfit to work. It was submitted that the complainant’s condition comes within the definition of a disability under the Employment Equality Acts.

The respondent submitted that the complaint was referred outside the statutory time limit. It was also submitted by the respondent that the complainant was not suffering from a disability at the time she resigned from her employment in August 2016. She was certified as suffering from stress and anxiety from May 2013 until 5th January 2015. The respondent received one further medical certificate from her on the 24th of February 2015 stating that the complainant was suffering from stress and anxiety and no further medical certificates were received up to the time she resigned in August 2016. The respondent submitted that the complainant took up employment with another employer in August 2015 and could not have been suffering from stress and anxiety.  

I note the complainant was on sick leave and was seeking to return to work after sick leave on the basis that certain measures were put in place up until the 8th August 2016 and her complaint was referred on the 6th of February 2017. I am satisfied that this complaint is within the statutory 6 months-time limits for referring a complaint.

The matter I must consider is, whether the complainant suffered with a disability within the meaning of the Act and whether the respondent was obliged under Section 16 cited above was obliged to provide appropriate measures for her so that she could return to work.

The definition of disability in Section 2(1) of the Acts is 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;”

I note that the complainant submitted medical certificates stating that she was suffering from stress and anxiety and was seen by the respondent’s Occupational Health Department in May 2013 and again on the 17th July 2013. In that report it was stated that she was stressed because of her work situation. There were no other medical reports provided to me. The complainant said in evidence that she was suffering from depression, stress and anxiety. She went on to say that she had not been diagnosed with depression by a consultant and that the only medical report she had was the one from OH in July 2013. I also note that the complainant in evidence said that she was fit to return to work from July 2013 onwards in a different area, but not in the Phlebotomy department reporting to the same manager because of the alleged bullying and harassment. I also note that while the complainant was out on sick leave she worked for a year from August 2015 until August 2016 with another employer.

In considering the definition of disability in the Equality Act cited above I have applied the reasoning of the Labour Court in the case of Health Services Executive North West and Patricia Cullen Killoran EDA1830. In that case the complainant was diagnosed as suffering from high levels of stress and anxiety due to a number of factors. The L.C. stated in applying the Labour Court decision in A Government Department v A Worker EDA 094 that:

“The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327). Nevertheless, no statute can be construed so as to produce an absurd result or one that is repugnant to common sense. That common law rule of construction has now been given statutory effect by s.5(1) of the Interpretation Act 2005. It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity.”

In relation to the definition of disability the Court noted that “is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal effect on the sufferer. This is clear from the definition which provides that it: -

“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 that case, the Court expressed the view that there was considerable cogency in the Respondent’s argument that mere unhappiness or ordinary stress or disappointment which effects a person’s emotions could not be classified as a disability.”

The evidence tendered by the complainant is that she suffered stress and anxiety because of alleged bullying and harassment by her boss. However, she did not produce any satisfactory medical evidence to support her contention that she was suffering from a disability up to and including the 8th August 2016 when she resigned. While she said in evidence she was suffering from depression there was no medical evidence produced. Applying the above jurisprudence from the Labour Court, I am not satisfied that the condition of stress and anxiety relied upon by the complainant to ground her complaint constitutes a disability within the meaning of the Act.

Even if I were to hold that the stress and anxiety suffered by the complainant came within the definition of disability in the Act cited above, I am satisfied that the complainant no longer suffered from the condition from about July 2013 onwards, given that the doctor in OH concluded it was not necessary for her to attend again in relation to stress and anxiety. Furthermore, on the complainant’s own evidence she was fit to return to work in an alternative post, but not in the phlebotomy department. I also note that the complainant was not medically certified unfit for work from the 24th February 2015 onwards while she remained out of work.   In addition, she worked for another employer from about August 2015 until August 2016, while she remained in the employment of the respondent. It follows therefore that she was fit to return to work and she was not suffering from a disability within the meaning of the Act on the 8th of August 2016 when she resigned from the respondent’s employment.

I find that this aspect of her complaint cannot succeed as the complainant is not covered by the disability ground within the meaning of the Act.

I find that the complaints of harassment and discriminatory treatment were referred outside the statutory time limits and I have no jurisdiction.

I find that, in relation to the complaint about failure to provide reasonable accommodation, the complainant was not a person who suffered a disability at the material time and therefore, is not covered by the disability ground under the Act. Her claim cannot succeed.

Constructive Dismissal

The complainant’s legal representatives submitted that she was constructively dismissed. The respondent acted so unreasonably leaving her with no option other than to resign and that amounted to a repudiatory breach of her contract of employment. It was submitted that the respondent allowed the complainant to be subjected to bullying and harassment which caused her stress and anxiety and she had to go on sick leave. It delayed in initiating, conducting and concluding an investigation into the complainant’s grievance of bullying and harassment and failed to carry out the investigation in a fair and reasonable manner. The respondent also failed to accommodate the complainant’s return from sick leave, by not giving her an internal transfer, insisting she return to work with the supervisor who bullied and harassed her, and requiring her to apply for other posts by open competition where no policy requiring same existed. She was also subjected to a recruitment freeze despite her continuing status as an employee. She was subjected to unfair and unreasonable ultimatums about returning to work from sick leave. It was submitted that the complainant exhausted all the procedures in attempting to resolve the matter.

I was referred to the case of Kennedy vs Foxfield Inns Ltd trading as the Imperial Hotel UD549/1994. In that case the complainant experienced difficulties with the assistant manager who completely ignored her and then progressed to making disparaging remarks about her and making unwanted physical conduct. The Employment Appeals Tribunal stated in finding that the complainant was constructively dismissed:

“The question for the tribunal is to decide whether the claimant’s decision to terminate her employment was reasonable. We are satisfied on the evidence that, by virtue of the type of conduct, of which she has complained, coupled with the status of the perpetrator of that conduct, the claimant’s situation in her employment became intolerable to the extent that she was left with no option but to terminate her employment.”

In the case of Porter vs Atlantic Homecare Limited UD 971/2007, the claimant said her new manager would call her names such as flirt and floozy and would call her away from jobs and would criticize her for not having completed them. The claimant reported this behaviour to an assistant manager, but nothing was done about it. The claimant was criticised for taking force majeure leave when her mother was seriously injured in an accident. The behaviour continued towards the claimant and she developed a stress related condition. The Employment Appeals Tribunal held that the decision to leave her employment was not a voluntary one.

I was also referred to the case of Stone v. I Moloney and Sons Ltd DEC- E2010-196. The Equality Officer stated:

“The Labour Court in the case A Worker (Mr O) v. An Employer [2005] E. L. R. 132 has addressed the issue of constructive dismissal under the Acts comprehensively. It set out the main applicable tests, these being the "contract" test and the "reasonableness" test, and held that these tests may be used either in combination or in the alternative. I find that in the case on hand, the reasonableness test is the relevant one.   This test asks whether the employer conducts its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. What can be regarded as reasonable or unreasonable depends on the circumstances of each case. However, it is an important element of the reasonableness test that the employer has an opportunity to address the employee’s grievance or complaint.

I am satisfied that the experience of continuing harassment over the course of more than a year, and the continuing requirement to work with her harasser placed considerable stress on the complainant. I am further satisfied that by the time of the complainant’s resignation, the respondent was fully aware of her grievances, yet not only persisted with his unlawful conduct, but, as found above had also started to victimize the complainant. It therefore cannot be said that he addressed her complaint in a meaningful or satisfactory manner, and that therefore his entire conduct towards the complainant must be regarded as so unreasonable that it would have been unfair to expect the complainant to continue to put up with it.”

In the case at hand it was submitted that, the respondent acted so unreasonable as to devastate the complainant’s trust and confidence in the respondent, and left her with no option other than to resign her employment, and that this amounted to a repudiatory breach of the contract of employment. The legal representative submitted that the complainant acted reasonably in attempting to resolve the matter herself by seeking an internal transfer to a different department.

Constructive Dismissal

The respondent submitted that its conduct and actions were those of a fair employer and rejects completely the notion that it left the complainant with no reasonable option but to resign her position. HR wrote to the complainant on the 27th June 2016, having not heard from her in 10 months and stated:

“I would be grateful if you could write to me on receipt of this letter outlining your intentions regarding your return to work or otherwise”

On the 30th June 2016, in an email exchange the complainant was advised that she was included in the Grade iv panel process that was underway. The respondent set out various options for the complainant in relation to staying in her employment if she did not want to return to her substantive post in phlebotomy, but the respondent could not hold open this post beyond the 31st July 2016. In response to a claim by the complainant, HR advised her that he was not forcing her to relinquish her employment position and was actively engaging with her to return to her post or to help her to secure an alternative post through open competition. On the 27th July and before her resignation the complainant was advised that she was successful in an interview for grade iv medical secretary post and was placed on a panel.

After the complainant’s resignation letter, HR wrote to her noting that she was successful in the competition and asking her to confirm her resignation. HR wrote to her again saying:

“I was outlining options to you to maintain your position of employment with the hospital. This is still the case.”

From the facts outlined above, it was submitted that the respondent did not constructively dismiss the complainant from her position, but she resigned of her own volition.   The communications from June to August with the complainant clearly shows that the respondent wanted the complainant to return to work.

The case law in the area of constructive dismissal places the burden of proof on the complainant to show that because of the actions of the employer she was left with no option but to resign. Furthermore, the complainant must show that she exhausted the internal grievance procedures before resigning. The EAT in McCormack v Dunnes Stores UD 1421/2008 held:

“The notion places a high burden of proof on an employee had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers.”

In Conway v Ulster Bank UD474/1981 the EAT stated:

“The duty is an imperative almost always in an employee resignation. Where procedures exist, they must be followed.”  

Similarly, in Travers v MBNA UD720/2006 the EAT held:

“We however, find that the complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case.”

The complainant never raised a formal grievance about the correspondence from HR before resigning.

It was submitted that it is well established case law that the complainant has to satisfy a reasonableness test and or a contractual entitlement test in order to succeed in a claim for constructive dismissal.

In the case of Caci Non-Life Limited and Daniela PaoneUDD 1750 the Labour Court stated:

“It is well-settled law that a complainant who is advancing a claim of constructive unfair dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective.”

It was submitted that in the case herein, that the respondent acted reasonably at all times in its dealings with the complainant. It argued that few employers would hold open both her substantive post and an alternative position for her for over 3 years as happened in this case. The respondent also reviewed alternative employment positions for her within the hospital.

The contract test as outlined by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1978] (IRLR332) stated:

“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 as discharged from any other performance.”

It was submitted that the respondent is not obliged to hold open a post indefinitely in circumstances where the post holder has confirmed where the post holder has confirmed several times that she will not return to the role. It is clear that it was the complainant that was in breach of her contract of employment which precipitated her employer to write to her.

It was submitted that the complainant resigned to take up a position in another hospital.

Constructive Dismissal

The matter I must consider is whether the complainant was constructively dismissed as she resigned from the employment. Section 1(b) of the Unfair Dismissals Act 1977 defines dismissal as:

“dismissal”, in relation to an employee, means—

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the 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, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

In relation to a breach of the contract of employment the judgment in Berber v Dunnes Stores Limited [2009] IESC 10 is the authority. The Supreme Court held that the test for whether the conduct had breached the implied term of mutual trust and confidence in a contract of employment is an objective one. Finnegan J. held:

“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at.”

and

The Labour Court in the case of Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, endorsed the legal test in respect of constructive dismissal as set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. The ‘contract test’ is set out 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 as discharged from any other performance.”

The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

The Labour Court went on to say: “Where an employer commits a repudiatory breach of contract the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract.

….. the definition deals with a situation in which 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, nonetheless, be regarded as so unreasonable as to justify the employee in leaving there and then.

According to the Supreme Court in Berber cited above, “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly to determine if it is such that the employee cannot be expected to put up with it.”

It places the burden of proof on the employee to show that her resignation was justified in all the circumstances.

The complainant went on sick leave on the 15th May 2013 and remained out of work until the 8th August 2016 when she resigned. She refused to return to work in the phlebotomy department after the outcome of the investigation of her bullying and harassment complaints and sought a transfer to another post in the hospital. The matter which triggered her resignation was the letter of the 27th June 2016 from the respondent asking the complainant about returning to work, pointing out that she was out of work for 3 years and she had not been in contact with HR for nearly a year. The letter went on to say that if the respondent did not hear from her by the 1st July 2016, it would be assumed that she did not wish to return to work and she would be processed as a leaver and her post in the phlebotomy department would be filled permanently. The complainant responded and a series of emails ensued between the parties. The complainant wanted the letter rescinded and said that she did not want to give up her position as a phlebotomist and would return there if the respondent advises her that the manager, Ms A. no longer worked there. The respondent in response refused to withdraw the letter and advised her of her options for staying in the employment and confirmed to her that her position in phlebotomy could not be held open for her beyond the 31st July 2016. The complainant resigned by letter dated 8th August 2016.

I note that following the referral of the bullying and harassment by the complainant that she was offered mediation which she declined. Likewise, I note that the respondent made efforts to arrange mediation between the parties, as recommended by the Investigator, to facilitate her return to work in her role in the phlebotomy department, but the complainant of her own volition choose not to accept and sought an internal transfer. I note that the complainant said that she would return to work in the phlebotomy department if the manager no longer worked there. It not reasonable for the complainant to have expected that the respondent to transfer the manager, particularly given that none of the allegations made against were upheld. There is an onus on both the employer and employee to resolve interpersonal issues within the workplace. The failure of the complainant to engage with the respondent in a meaningful manner in seeking a resolution to the difficulties experienced by her in the phlebotomy department was unhelpful in resolving her issues in that department and assisting her return to work.

Therefore, it is incorrect to state that the respondent was not proactive in seeking to resolve the issues and get the complainant back to work

I note that the respondent offered the complainant a transfer at the complainant’s request to the role of HCA which she declined because she considered it a demotion. It would appear, that the complainant wanted a transfer to a role such as a medical secretary, but these roles were outside her area of expertise and were subject to an interview process. The respondent notified the complainant of medical secretary posts and following an interview she was placed on a panel. However, the complainant turned down a temporary post offered to her as she wanted a permanent post.

It is difficult to know what further the respondent could have done to assist the complainant to return to work. It was unreasonable for the complainant to expect the respondent to hold open her position in the phlebotomy department indefinitely. I note the complainant was working with another employer for the last year of her employment with the respondent and took up a permanent post in another hospital shortly after resigning. Therefore, it would appear that the complainant had already decided she was leaving her employment with the respondent when she tendered her resignation.  

I have examined the series of correspondence which passed between the parties before the complainant’s resignation, I find no evidence that the respondent acted unreasonably.   After being absent for over 3 years It was reasonable for the respondent to write to the complainant and give her a deadline for deciding in relation to her employment situation. It was not a repudiatory breach of her contract of employment to seek such a clarification. I note the respondent continued to engage with her both before and after she resigned outlining options so that she remained in the employment. However, the complainant went ahead with the resignation.

I cannot accept that the respondent was guilty of conduct which “is a significant breach going to the root of the contract of employment” applying the test in Paris Bakery cited above. The conduct in relation to clarifying with the complainant her intentions in respect of returning to work certainly did not meet the standards implicit in a “last straw” incident as set out in Berber above. The evidence tendered by the complainant is not sufficient to support a complaint of constructive dismissal. In Berber cited above the Supreme Court test for constructive dismissal said that “the conduct of the employer must be unreasonable.” I find that no evidence has been presented by the complainant to support the contention that the respondent’s conduct met this test.

In McCormack v Dunnes Stores cited above I note that the EAT held that the employee had to demonstrate that she “had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers.”

The complainant did not explore with the respondent the options for returning work or invoke the grievance procedures before resigning.

For all the above reasons, I find that the complainant has failed to meet the threshold to establish a complaint of constructive dismissal in accordance with Section 1(b) of the UD Act and as set out in the caselaw cited above.

Applying the jurisprudence of the Labour Court in the Paris Bakery case cited above, I am satisfied that the complainant has not established that the conduct of the respondent was so unreasonable that she was entitled to resign. In the circumstances, I find the complainant has failed to establish that she was constructively dismissed.

For the reasons outlined above, the complainant has failed to establish that she was constructively dismissed and her claim under the Unfair Dismissals Act cannot succeed.

The complainant is claiming that she is entitled to be paid for annual leave in accordance with the provisions of the Organisation of Working Time Act.

It was submitted that the respondent failed to pay the complainant accrued annual leave from 1st June 2014 until 8th August 2016.

The respondent submitted that the complainant has no entitlement to annual leave for the years beginning the 1st April 2013 and 1st April 2014 as the statutory entitlement to such leave ended 15 months after the end of the leave years. It was accepted that in normal circumstances the complainant would accrue an entitlement in respect of medically certified sick leave absence from the 1st April 2015 to 8th August 2016.   It was submitted that the complainant was working for another employer from August 2015 to August 2016 and would not have an entitlement to annual leave. Furthermore, the complainant did not provide medical certificates in respect of her absence since February 2015, and uncertified leave does not provide the complainant with an entitlement to annual leave.

The complainant was paid for 25.73 days annual leave at the date of her resignation. It was submitted by the respondent that this was an error and she was overpaid and the complainant has no entitlement any further payments for annual leave.

Section 19 (1A) of the Organisation states: “For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was— Organisation of Working Time [1997.] Act 1997

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.”

Section 20 provides:

“(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

……….

(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(i)Is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.”

The complainant is claiming accrued annual leave entitlements in accordance with Section 19(1A) of the Act from 1st June 2014 to 8th August 2016 as she was absent from work due to illness. I note that she was paid for a total of 25.73 days annual leave on the ending of the employment.

The statutory leave year begins on the 1st of April and ends on the 30th March each year. Section 20 cited above, provides that a claim for annual leave in respect of illness must be claimed within a period of 15 months after the expiry of the leave year. The period for claiming annual leave for the annual leave year 2014/2015 expired on the 30th June 2016. Therefore, the claim in respect of the 2014/2015 leave year is statute barred.

The claim in respect of the leave years 1 April 2015 to 30 March 2016 and from 1st April 2016 to the end of the employment on the 8th of August are within time.   To qualify for annual leave in respect of an illness S. 19 and 20 of the Act, cited above requires that the absence is medically certified. I note from that from February 2015 onwards to the end of the employment no medical certificates were provided to the respondent. Therefore, this absence does not come within the terms of the Act, in respect of the granting of annual leave. I also note that the complainant was working for a year during this period and could not have been accruing annual leave in respect of an illness absence.   For the above reasons, I find that the claim for annual leave due to an illness does not comply with the terms of the Act. Therefore, this claim cannot succeed.

For the above reasons, I find that the claim for annual leave due to an illness does not comply with the terms of the Act. Therefore, this claim cannot succeed.

Employment Equality Acts, bullying harassment, time limits, disability definition, reasonable accommodation, Unfair Dismissals Act, constructive dismissal, Organisation of Working Time Act, annual leave and sick leave.