Complainant

Respondent

Anonymised Parties

A Training Co-Ordinator / Instructor

A Training and Rehabilitation Organisation.

Representatives

Solicitors

 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00022819-001

23/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00022819-002

23/10/2018

The issues in this case concern

(1)    Under the Employment Equality Act,1998 alleged Discrimination, on the grounds of a Disability, in Conditions of Employment, and alleged Victimisation and Harassment.

(2)    Under the Protected Disclosures Act, 2014 Penalisation for making a “protected” disclosure.

1:1         Employment Equality Act, 1998 - CA 00022819-001

The Complainant claimed that she had been Discriminated against by reason of her Disability – (Work Related stress). She had been Victimised and Harassed by her Employer in their negligence in allowing a colleague, (called for convenience hereafter Ms.X) to operate in a very negative and bullying manner towards the Complainant and indeed to other colleagues. Ms.X was effectively out of Managerial control and operated as she pleased in bullying and harassing her colleagues. In the Oral Hearing it was implied that Ms.X was a completely negative and damaging influence on the Training Centre and all staff working there.

The difference in treatment of the Complainant and Ms. X by the Respondent falls under the remit of Section 6 (2) g of the Act.

In relation to Conditions of Employment -Section 8(6) refers. The Complainants’ efforts to secure Promotion were blocked because of Discrimination against her resulting from the Respondents negative reaction to the Complainant’s efforts to report the activities of Ms.X and other unsafe working conditions.

In relation to Harassment -Section 32(1) refers. The Respondent did not properly investigate relevant incidents and in particular an Incident on the 4th January 2018 involving Ms. X and the Complainant.

Regrading Victimisation Section 77(1)d refers. The Complainant alleged that she was victimised by the Respondent in expecting her to work along side Ms.X without adequately addressing the negative behaviours of Ms.X. The Respondent failed to follow their own guidelines in this area.

1:2       Schedule 2 of the Protected Disclosures Act, 2014 CA-00022819-002

The Complainant alleged that she had made a “Protected Disclosure” regarding the negative activity of Ms.X to her direct Manager- Ms.H and also made a Disclosure to the HSE regarding conditions at the Training centre. As a result of these disclosure she was Penalised by the Respondent in forcing her to work alongside Ms.X without taking any actions to address the behaviours of Ms.X. This situation got so bad that the Complainant was forced to resign her employment.

2:1       Employment Equality Act, 1998 - CA 00022819-001

The Respondent argued the following points as part of an Oral and Written submission.

The Complainant has not demonstrated satisfactorily that she has or had a “Disability” as required by the Equality Act. Certificates for Work related Stress in January and early 2018 are not conclusive proof of a “disability” as opposed to a short-term illness. Legal precedent was advanced to support the argument that without a legally acceptable “disability” the claim cannot succeed.

The Burden of Proof in an Equality case as per Section 85 of the Act requires the Complainant to establish, in the first instance, a Prima Facie case or at the very least a strong inference of Discrimination. A claim cannot be based on assumptions or unproved allegations. In this case the Complainant has not proffered any realistic evidence that she was Discriminated against. In relation to the alleged difficulties in a Promotion Competition in 2017 the then HR Business Partner, Ms. F, offered feedback which was declined. This was not Discrimination.

Evidence of Harassment or Victimisation, as defined in the Act, in relation to the Complaints following the Canteen Incident of the 4th January 2018 was never provided. A full Investigation, in keeping with all Company procedures, was being arranged following a meeting on the 22nd of March 2018.

In overall summary the Respondent maintained that the Complainant did not have a qualifying Disability and even if so had never informed Management of such an alleged Disability.

In addition, the Complainant had not established a sustainable Prima Facie evidential case as required by the Act. Accordingly, the claim should fail.

2:2     Schedule 2 of the Protected Disclosures Act, 2014 CA-00022819-002  

The Protected Disclosures Act, 2014 clearly sets out what constitutes a Protected Disclosure-Section 5(3) refers. The alleged Disclosures by the Complainant regarding firstly Ms. X’s alleged behaviours and secondly the Asbestos roof in the Midland premises could not by any stretch be deemed as disclosures under the Act.

Reference was made to the WRC Code of Practice on Protected Disclosures and Section 46 of same where the differences between an Employee Grievance and a Disclosure are referenced. In the Oral presentation it was discussed by Ms.H that the Complainant and Ms.X were not the closest of colleagues and a Grievance issue from the Complainant was not a surprising development.

The Complaints of the Complainant post the January 2018 incident were Grievances and could not satisfy the definition of “Protected Disclosures”. Likewise, regarding the Asbestos roof there was absolutely no evidence that the Complainant had ever raised this issue internally.

The Respondent has a Whistleblowing Policy and it was never invoked in this Asbestos regard. The Complainant to the HSA had been anonymous.

As the Respondent had never been informed of the source of the Asbestos complaint nor was the post 4th January 2018 complaint anything outside of the remit of the Dignity at Work policy. Penalisation as defined in the Protected Disclosures Act could never have taken place.

3:1       Employment Equality Act, 1998 - CA 00022819-001

The Relevant Law.

The relevant law here is the Employment Equality Act,1998 supported by extensive Legal precedent.

The key issues are in summary and in sequence

1.       The Need to establish a valid Disability, Section 2 of the Act

2.       The Burden of Proof Argument that then arises, Section 85 A of the Act

3.       Consideration of a possible Management defence – consideration of “Appropriate Measures” to address the Disability. - Section 16 of the Act

Taking Point No 1 first -Disability

Section 2 of the EEQ Act ,1998 defines Disability as follows

“ disability” means—

( a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

( b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

( c) the malfunction, malformation or disfigurement of a part of a person’s body,

( d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

( e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

A crucial follow on issue is then whether or not a particular set of symptoms constitute a Disability particularly where the issues are largely of a Non-physical nature – Work related Stress being the illness in question here.

The best source for this discussion is in Employment Equality Law – Bolger, Bruton and Kimber -Round Hall 2012 Edition. Section 7-51 page 330 is pertinent and I quote

7-51 Page 330

In one decision, the Labour Court provided useful guidance on the issue of whether work-related depression could amount to a disability, but in doing so expressed the opinion that there has to be a certain minimum level of symptoms manifest in the condition suffered by the individual concerned to be sufficient to be a disability.

The Labour Court noted that while the definition in the Acts did not refer to a minimum level of extent to which the symptoms were to be present, the Labour Court held that a de minimis rule must be applied such that “effects or symptoms, which are present to an insignificant extent, would have to be disregarded.” Significantly the court expressed the view, on an obiter basis that mere unhappiness, ordinary stress or disappointment would not amount to a disability. In a similar vein, a more recent decision has determined that work-related stress of itself does not constitute a disability for the purposes of the Acts.Mr.A v A charitable Organisation DEC-E2010-049

The decision of the Labour Court establishes for the first time that there must be a minimum level of symptoms of a particular condition present for the condition to amount to a disability and receive the ascribed protection provided by the Acts. Should a claimant only have symptoms of a condition which are of an insignificant or lower extent, it appears that they would not meet the threshold established by the decision. O’Rourke v Dublin City Hotel DEC-E2010-045

Underlining by the Adjudication Officer.

There is further Legal debate arising from the European Court of Justice case of Chacon Navas v Eurest 2006 – ECR I.06467 where it is broadly stated that in a disability condition it has to be

“ probable that the condition will last for a long time”.

In summary therefore, I came to the view that to qualify as a disability under the Acts a condition has to be of relatively long standing or at least be capable of a long duration.

However, all cases have to stand on their own merits and evidence and I will now consider these in this Disability context prior to moving to the Burden of Proof or the Reasonable Accommodation questions.

3:2       Consideration of the Evidence- Disability question.

The Medical evidence here centred on the MedMark report of the 12th February 2018 supported by the GP certs from the Complainant’s own Doctor. There was no evidence of earlier medical reports that might have indicated a prior stress situation. MedMark accepted that at the time of the examination she was unwell but expected her to return to work in “the coming 4-6 weeks”. At the meeting of the 22nd March 2018 it did not appear that the MedMark report was challenged on a medical basis.

The illness absence was likely to be of a short duration. There was no suggestion of hospitalisation or Consultant reports being required. There is nothing in the MedMark report to indicate an immediately serious in the short term or a long-term condition of disablement.

Taking the Legal opinions quoted above, the case in Mr. A v A charitable Organisation DEC-E2010-049

and the ECJ case of Chacon Navas I came to the view that the work-related stress in this case was not such as to qualify as a disability under Section Two of the Employment Equality Act.

This being the case the remaining elements of the claim, Harassment, Conditions of Employment and Victimisation must fall in the absence of a disability as required under the Act.

3:3       Schedule 2 of the Protected Disclosures Act, 2014 CA-00022819-002  

The relevant Law here is the Protected Disclosures Act,2014 supported by the WRC Code of Practice on Protected Disclosures.

The key Legal area is Section 5 of the Act where Protected Disclosures are defined.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

(7) F1 [ Subject to subsection (7A) , the motivation ] for making a disclosure is irrelevant to whether or not it is a protected disclosure.

F2 [ (7A) Where a worker, referred to in subsection (1), makes a disclosure of relevant information in the manner specified by that subsection, and in respect of that disclosure of relevant information it is alleged that the disclosure concerned the unlawful acquisition, use or disclosure of a trade secret (within the meaning of the European Union (Protection of Trade Secrets) Regulations 2018 ( S.I. No. 188 of 2018 )), such disclosure is a protected disclosure provided that the worker has acted for the purposes of protecting the general public interest. ]

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is

In this case the Complainant would seek to rely on the argument that her Complaint against Ms.X was a “protected disclosure” The Disclosure, presumably relying on Sub Section (d) -the Health & Safety clause above, was made to Ms.H - her immediate Manger and also Ms. X’s immediate Manager. The Respondent argument was that this issue was more in the way of an Employee Grievance and referred to section 46 of the Code of Practice as being more appropriate.

In the Oral evidence it was clear that Ms.H, the Manager, was well aware of the operations of the Training Centre. A Protected Disclosure is commonly accepted to be the revealing of a Wrong - a matter that it is reasonably presumed the Management are unaware of. This was clearly not the case here and the Respondent argument of a Grievance against Ms.X and a Complaint under the Dignity at Work Policy being more appropriate than a Protected Disclosure has in my view some weight. As the Code of Practice identifies, a Grievance is a normal part of the employment relationship and has to be treated as such. It does not automatically mean it is a Protected Disclosure.

The reporting of the Asbestos Roof was anonymous and could not be linked to the Complainant as the basis for any alleged Penalisation complaint.

Accordingly, in this case I had to find that the definition of a Protected Disclosure as opposed to a Grievance has been satisfied. I did not see that there had been a Protected Disclosure as defined in the Act.

It follows from this that the claim/complaint of penalisation must also fall.

Act

Complaint/Dispute Reference No.

Summary Decision /Please refer to Section Three above for detailed reasoning.

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

CA-00022819-001

Disability, as defined in the Act and Legal Precedents not found. Claim accordingly must fall.

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00022819-002

Protected Disclosure as defined in the Act and Legal Precedents not found. Claim must fall.