Complainant

Respondent

Anonymised Parties

An Assistant Manager

A Bank

Representatives

Patrick O'Neill Patrick O'Neill & Co Solicitors

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-00020950-001

28/07/2018

The Complainant commenced employment with the Respondent, a bank, in October 1981. The Complainant was promoted to the rank of Assistant Manager (AM) in 2004. Her employment ended in June 2018. The Complainant was paid a gross monthly salary of €4,750. A complaint was lodged with the Workplace Relations Commission on 28th July 2018.

The Complainant submits that she was discriminated against by way of her disability. She was discriminated against in relation to promotion, training, victimisation and was dismissed for discriminatory reasons. The Complainant alleges that she was constructively dismissed.

The Complainant submitted that she has suffered from anxiety/depression for some years. In 2013 this manifested itself in the form of agoraphobia, an anxiety disorder in which she felt compelled to avoid places or situations that might cause her to panic or feel trapped, helpless or embarrassed. The Complainant submits that this condition arose after she had attended a leadership training programme introduced by the bank.   During the course the Complainant felt bullied, exposed and to a degree frightened to attend work. She did complain bur stopped short of mentioning what she considered to be bullying by the course facilitator.   She went sick and was absent for four months.

On her return to work the Complainant submits that she was no longer allowed carry out staff reviews or set staff objectives, was no longer invited to meetings with Senior Management, was no longer invited to Assistant Manager (AM) meetings and staff were advised to contact another Assistant Manager regarding sick leave etc.

The Complainant was told that the reason for these changes was because she had not completed the leadership programme. However, the Complainant submits that AMs on other teams were still completing their normal tasks and attending meetings without having attended the same leadership programme. The Complainant felt the real reason behind her treatment was the nature of her illness.   For several years up to 2013 she had successfully run teams and ay all times her personal reviews remained satisfactory.

In 2016, a new manager was appointed who, the Complainant submits, could not understand why the Complainant was not allowed to fulfil the AM role and he set out to rectify this. Initially the new manager and the Complainant had a good relationship and positive reviews continued under his management. However, as the Complainant’s health deteriorated so too did their relationship.

In 2017, the Complainant again became ill with agoraphobia and was absent for a period of five months. Around the same time the Complainant was also diagnosed with microscopic colitis and attended the company doctor on several occasions during this absence.

When the Complainant returned to work in November 2017 a new line manager had been appointed. Initially the Complainant settled back into work on a short working week, as advised by the company doctor. The complainant used annual leave rather than sick leave during this period.

The Complainant was then asked to temporarily transfer from her department to another department in another part of the city, until after the Christmas period.

The Complainant submits that when she arrived at the new location on 30th November 2017 it was obvious to her that the manager of that department did not know what to do with her. He was expecting a full-time lower grade staff member and not the Complainant. The Complainant had little to do and advised the manager that she was happy to do any work as long as she was busy and helpful.

During her period in this location the Complainant requested that she visit the company doctor as she had been advised, however her line manager suggested there was no need at that stage and if the Complainant felt it was necessary the Complainant could make an appointment, even though such an appointment could only be arranged through HR.

On her return to her own team after Christmas the Complainant found there had been several changes to her team and that her desk had been removed from the team, who were all sitting together. The hard drive of her computer was missing. The Complainant’s line manager was on leave and had not sent the Complainant any emails to advise the Complainant of the changes to the team and the Complainant’s responsibilities in the new team set up. The other AM with whom the Complainant had worked for many years had been moved to a project team and his replacement spoke to the Complainant with “utter disrespect.” The Complainant felt totally isolated and surplus to requirements. She was not given access to new folders and was thus unable to do her job to the best of her abilities. The Complainant was left with no direction on a team which she had effectively been absent from for six months. The Complainant suffered from palpitations and was again absent from work for a period of three weeks, from 8th January to 29th January 2018.

The Complainant and her line manager had meetings on the 29th and 31st January. The Complainant does not believe her line manager had any genuine concern for her health issues. The Complainant believes her line manager did not want her on the new team. The line manager suggested a transfer to another team and that the Complainant should contact HR to see if they could do something for her, including perhaps a termination package of some sort.

The Complainant submits that she complained to her line manager about the AM she was working with in the team. Her line manager subsequently discussed her complaint with the AM and two other AMs. The Complainant felt this was unprofessional and raised it with her line manager. Her line manager disagreed with her and as the Complainant was upset suggested she should return to her GP as perhaps the Complainant needed more sick leave.

The Complainant submits that her line manager was very dismissive regarding concerns raised by the Complainant about her ability to carry out her work due to lack of access to folders. The line manager advised the Complainant that this would be sorted out over time. The line manager completed the Complainant’s performance review for 2017, which for the first time was not satisfactory.

The Complainant found her position increasingly difficult in early 2018. She began to suffer from work related stress, which was certified by her GP, and caused her to go sick from 5th February. The Complainant attended the company doctor on a number of occasions.   Her last visit to the company doctor was on 2nd May 2018, she was meant to be referred to see him six weeks after that visit, but the bank did not arrange for the visit, which must be done through HR.

The Complainant wrote to the Group Director of Operations on 23rd February 2018, outlining her concerns.

The Complainant submits that because of her employer’s conduct up to and including 5th February and the lack of interest in dealing with her health issues after that, including those issues caused by the bank’s treatment of her, she felt her position was no longer tenable. She wrote to the bank on 28th June 2018 informing them of this and the fact that she holds them responsible for the termination of her employment by constructive dismissal.

In oral evidence at the hearing the Complainant's representative stated that when the Complainant returned to work in November 2017, despite concerns raised by the company doctor, it was "business as usual", no one checked with her how she was, and no arrangement was made for a follow up visit.   The Complainant insists she was left to sort out her own medical problems. This was, in the eyes of the Complainant, well below the expected standards of a decent employer. Someone with Agoraphobia would struggle in such circumstances and the Respondent should have taken this into account.

In her own oral evidence at the hearing the Complainant sated that she was conscientious employee, who had never been complained of and had a high level of discretion. However, things changed in 2013 due to her illness. As her health deteriorated so too did her relationship with the bank.

The Complainant stated that when she was transferred to the other office in late 2017 they made a job up for her; the manager was expecting a level 5 person but got a (higher) level 4 person. On her return to her original office she says she was "spoken to like dirt", by another AM and although she complained about this she felt she was dealt with any way satisfactorily. The Complainant felt the issues were accumulating and in the end she was broken by everything.

In relation to the meeting she had with her line manager at the end of January 2018, the Complainant stated that this was not a good meeting, she had had gotten upset. She did agree that she had said that if a redundancy package was on the table she would look at it.

When asked to supply a comparator the representative for the Complainant stated that there was no real comparator, but it should be looked at objectively; how would you expect an employee to deal with such matters.

When asked why she had not utilised the bank's grievance policy the Complainant stated that she was not the type to complain. She had written to the Group Director of Operations, in a letter dated 23rd February, but was disillusioned with his response. She stated that the Respondent was aware of her difficulties.

The Complainant stated that the straw that broke the camel's back was when no medical appointment was made for her for June 2018. This exemplified the Respondent's attitude to her; she was unwell, and this was unfair treatment.

In concluding, The Complainant's representative stated that they had discussed putting in a grievance, but the Complainant was unable to do so as the Complainant was unwell, and it is hard to expect the same standards as a not unwell person. It is the Complainant's view that in exceptional circumstances an employee is excused from the need to process a formal process and this was such a case.

The Respondent provided a detailed written submission.

The Respondent denies the claims made by the Complainant.

By way of background the Respondent submitted that the Complainant was absent from work from 1st July 2013 to 8th October 2013 and was diagnosed as agoraphobia at this time. The Complainant was absent from work from 13th June 2017 to 12th November 2017 as a result of anxiety. The Complainant was absent from work citing work related stress from 8th January 2018 to 21st June 2018, except for attending on 29th & 31st of January 2018.

On 23rd February 2018, the Complainant contacted the Respondent's Group Director of Operations, outlining a number of concerns.   In this contact the Complainant requested that a "mutually acceptable solution" be found which would allow her "to leave the Company with some dignity and respect".   On 14th March 2018 the Group Director of Operations replied to the Complainant suggesting that it would be more appropriate that a member of the Respondent's Human Resources Department should meet with the Complainant to explore the issues that the Complainant had raised with him. The Director requested the Complainant contact two named members of the HR Dept. The Complainant did not contact either of them.

On 28th June 2018 the Complainant tendered her resignation from the Bank as she felt she was "surplus to requirement" on the basis that her illness and therefore she was constructively dismissed.

In response to the four issues listed by the Complainant in her WRC Complaint Form the Respondent submits:

(i) Regarding the Leadership Training Programme referred to by the Complainant, the Respondent has no record of any complaint, formal or otherwise, being made to the HR Dept. While the Complainant may have had an issue with the programme trainer no issue was raised with the Bank and therefore the Bank cannot be held at fault.

(ii) Regarding the Complainant's allegation that she was not allowed carry out staff reviews the Respondent submits that because the Complainant was absent for an extended period of time it fell to another manager to conduct reviews and objective setting in her absence. On the Complainant's return to work it was agreed that with another AM that the operational and personnel responsibilities would be divided between them. The Complainant did not object to these changes.

(iii) Regarding the claim that she was excluded from attending AM meetings the Respondent submits that the Complainant's manager says that she has no recollection of this being the case.

(iv) Regarding the claim that staff were advised to go to another AM about day to day matters such as sick leave the Respondent submits that this was agreed with the Complainant.

The Respondent submits that the Complainant had a large number of sporadic absences from work in 2016 and that she was spoken to about this, in line with policy.

Regarding the move to the other office in late 2017 the Respondent submits that the Complainant was given the opportunity to refuse to move but agreed to the move. There was specific work planned for the Complainant to carry out supporting the Data Access Team from a managerial point of view. The Complainant was not that she should not attend the company doctor but rather that if she wished to do so she should go through the HR Dept.

In response to the Complainants' assertion that when she returned to work on 3rd January 2018 her desk had been removed from her team, the Respondent submits that there was no assigned seating and the Complainant could have moved her work station if she had so wished. The Complainant was not informed of the changes to the work area as her manager was on annual leave and the Complainant was on sick leave around that time and it is standard practice not to contact employees when they are out sick.

Regarding access to IT files the Respondent puts forward that User Access rights are removed from long-term absentees and in this the Complainant was treated no differently than other employees.

A complaint about the way a manager had interacted with the Complainant was discussed with the complainant and her manager at a meeting on 29th January. The outcome was that the Complainant stated that she would be able work with the manager in question.

In response to the claim made that the Complainant's line manager suggested she move departments, the Respondent agrees that such a discussion did take place, but the line manager was not suggesting she did not want to continue working with the Complainant rather that she was offering the Complainant other opportunities if she wished to avail of them. The Respondent also denies there was a suggestion made by the Complainant's line manager that a severance package might be available, on the contrary, according to the Respondent, it was the Complainant who raised the issue of a possible redundancy.

The Respondent also denies that the Complainant's line manger suggested that the Complainant should take more sick leave, she did tell the Complainant that she be taking the advice of the company doctor and continuing with her phased return to work.

In oral evidence at the hearing the Complainant's line manager recalled the meeting at the end of January 2018. She stated that it was the Complainant who raised the issue of redundancy. Although the line manger did not shoot the idea down she did tell the Complainant she should talk to HR.

The Respondent denies that the Complainant was dismissed under discriminatory grounds. The Respondent submits that when it received the Complainant's resignation letter dated 28th June 2018, the Head of Employee Relations replied to the Complainant that as the Bank had not had an opportunity to resolve the Complainant's concerns it was eager to now do so through either formal or informal established procedures. The Bank also requested the Complainant reconsider her resignation and allowed a period of five working days to allow for reconsideration.   The Complainant's solicitor responded on 24th July 2018 outlining that his client's position was quite clear.

In concluding, the Respondent believes the Complainant acted prematurely in tendering her resignation. The Respondent also denies that it did not have an interest in dealing with the Complainant's health issues; rather the Complainant was continually referred to the company doctor where appropriate. If, as the Complainant contends, she should have been referred to the company doctor again on 13th June 2018, and this was not done by Hr, this was not an unusual occurrence.

The Respondent believes that the Complainant's failure to utilise the internal formal or informal grievance procedures clearly shows that she was not interested in resolving her concerns through the suggested and recommended channels.

Even after she had tendered her resignation the Respondent asked her to reconsider her decision. The Respondent did not wish to terminate the Complainant's employment and believe it was unreasonable for her to do so.

I have considered this matter carefully.

I am satisfied that the Complainant suffered from a disability, as diagnosed in 2013 and it would seem that many of the difficulties she had at work stemmed from this time. The question to be answered is whether the Respondent's actions in dealing with the Complainant were discriminatory, i.e. was the Complainant treated less favourably' in the ways she has alleged, than a non-disabled colleague would have been in similar circumstances.

When she returned to work in Nov 2017 she had been passed fit to return by the company doctor and it would seem no particular accommodation was required to ensure she was able to carry out her AM role. The Complainant may have had some of her Performance Review responsibilities removed but I find that this was because she had been absent for some time and therefore could not run the rule over her team members in the same manner as a peer who had not been absent to the same extent. In any case the complainant agreed to the shuffling of responsibilities.

There is no doubt that the move to the other city office was badly-handled but I believe this was due to poor communications rather than an attempt to undermine the Complainant's status.

On her return to her original office the Complainant's desk was moved a distance from her team but this was a small distance, which would not have unduly impacted on the way she could interact with her team. I view the Complainant's desk position as an outcome of the revamp of the office layout rather than a sinister action on the part of the Respondent.

Although the Complainant's relationship with her line manager was not what is should have been no evidence was adduced to support a contention that this poor relationship was caused by the Complainant's disability.

I find that the Respondent was aware of the Complainant’s grievances mainly by the number of day to day issues she raised after her return to work in 2017 and secondly, by her letter to the Group Director of Operations.   I find the Respondent did not react to her grievances as proactively as it should have and more could have been done to get the matters resolved. However, the Complainant never utilised the Respondent's formal grievance procedures to try and get resolution to her difficulties. At the hearing the Complainant's representative stated that she did not use the formal company grievance procs as she was not well enough to do so. Whatever merit this argument may have it does not explain why the Complainant did not utilise either formal or informal grievance procedures as suggested by the Respondent after she had tendered her resignation, at which time the Complainant was getting legal advice.

The non-utilisation of the formal grievance procedures is important in the context of an alleged constructive dismissal. The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of a contract of employment. It is, after all, a breach of a legally binding contract.

In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

It is relatively easy for an employee to terminate their employment by simply resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

‘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 in order to determine if it is such that the employee cannot be expected to put up with it.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

In this instance I do not believe the actions of the Respondent were such to justify the unilateral termination of the employment contract.   On the evidence adduced, I do not find the Complainant's situation to have been "intolerable".   I also find that the Complainant did not act reasonably in resigning and without first having utilised the grievance procedure to attempt to remedy her complaints.

No evidence was adduced at the hearing to support the Complainant's claim that she was discriminated against in relation to promotion or training.

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

I have examined whether the Complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the 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 continued:

 “It is only if these 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 was no infringement of the principle of equal treatment”.

In order to determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the complainant must establish that she is covered by the relevant discriminatory ground.

Second, she must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this instant case, I am satisfied that the Complainant has a disability.

However, I am not satisfied that the Complainant was constructively dismissed. Nor do I believe she missed out on promotion or training or was victimised as alleged.

In considering the third tier of the test, I have noted that the Respondent failed to deal with the Complainant's issues comprehensively. While this is not satisfactory from the Complainant’s side, the fact that the treatment was less favourable than what would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground has not been proven.

I find that the complainant has not established a prima facie case and her complaint therefore cannot succeed.

This complaint is unfounded.

Disability, Performance, Grievance Procedures

Complainant

Respondent

Parties

Nuala Costelloe

Permanent TSB

Complainant

Respondent

Anonymised Parties

An Assistant Manager

A Bank

Representatives

Patrick O'Neill Patrick O'Neill & Co Solicitors

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-00020950-001

28/07/2018

The Complainant commenced employment with the Respondent, a bank, in October 1981. The Complainant was promoted to the rank of Assistant Manager (AM) in 2004. Her employment ended in June 2018. The Complainant was paid a gross monthly salary of €4,750. A complaint was lodged with the Workplace Relations Commission on 28th July 2018.

The Complainant submits that she was discriminated against by way of her disability. She was discriminated against in relation to promotion, training, victimisation and was dismissed for discriminatory reasons. The Complainant alleges that she was constructively dismissed.

The Complainant submitted that she has suffered from anxiety/depression for some years. In 2013 this manifested itself in the form of agoraphobia, an anxiety disorder in which she felt compelled to avoid places or situations that might cause her to panic or feel trapped, helpless or embarrassed. The Complainant submits that this condition arose after she had attended a leadership training programme introduced by the bank.   During the course the Complainant felt bullied, exposed and to a degree frightened to attend work. She did complain bur stopped short of mentioning what she considered to be bullying by the course facilitator.   She went sick and was absent for four months.

On her return to work the Complainant submits that she was no longer allowed carry out staff reviews or set staff objectives, was no longer invited to meetings with Senior Management, was no longer invited to Assistant Manager (AM) meetings and staff were advised to contact another Assistant Manager regarding sick leave etc.

The Complainant was told that the reason for these changes was because she had not completed the leadership programme. However, the Complainant submits that AMs on other teams were still completing their normal tasks and attending meetings without having attended the same leadership programme. The Complainant felt the real reason behind her treatment was the nature of her illness.   For several years up to 2013 she had successfully run teams and ay all times her personal reviews remained satisfactory.

In 2016, a new manager was appointed who, the Complainant submits, could not understand why the Complainant was not allowed to fulfil the AM role and he set out to rectify this. Initially the new manager and the Complainant had a good relationship and positive reviews continued under his management. However, as the Complainant’s health deteriorated so too did their relationship.

In 2017, the Complainant again became ill with agoraphobia and was absent for a period of five months. Around the same time the Complainant was also diagnosed with microscopic colitis and attended the company doctor on several occasions during this absence.

When the Complainant returned to work in November 2017 a new line manager had been appointed. Initially the Complainant settled back into work on a short working week, as advised by the company doctor. The complainant used annual leave rather than sick leave during this period.

The Complainant was then asked to temporarily transfer from her department to another department in another part of the city, until after the Christmas period.

The Complainant submits that when she arrived at the new location on 30th November 2017 it was obvious to her that the manager of that department did not know what to do with her. He was expecting a full-time lower grade staff member and not the Complainant. The Complainant had little to do and advised the manager that she was happy to do any work as long as she was busy and helpful.

During her period in this location the Complainant requested that she visit the company doctor as she had been advised, however her line manager suggested there was no need at that stage and if the Complainant felt it was necessary the Complainant could make an appointment, even though such an appointment could only be arranged through HR.

On her return to her own team after Christmas the Complainant found there had been several changes to her team and that her desk had been removed from the team, who were all sitting together. The hard drive of her computer was missing. The Complainant’s line manager was on leave and had not sent the Complainant any emails to advise the Complainant of the changes to the team and the Complainant’s responsibilities in the new team set up. The other AM with whom the Complainant had worked for many years had been moved to a project team and his replacement spoke to the Complainant with “utter disrespect.” The Complainant felt totally isolated and surplus to requirements. She was not given access to new folders and was thus unable to do her job to the best of her abilities. The Complainant was left with no direction on a team which she had effectively been absent from for six months. The Complainant suffered from palpitations and was again absent from work for a period of three weeks, from 8th January to 29th January 2018.

The Complainant and her line manager had meetings on the 29th and 31st January. The Complainant does not believe her line manager had any genuine concern for her health issues. The Complainant believes her line manager did not want her on the new team. The line manager suggested a transfer to another team and that the Complainant should contact HR to see if they could do something for her, including perhaps a termination package of some sort.

The Complainant submits that she complained to her line manager about the AM she was working with in the team. Her line manager subsequently discussed her complaint with the AM and two other AMs. The Complainant felt this was unprofessional and raised it with her line manager. Her line manager disagreed with her and as the Complainant was upset suggested she should return to her GP as perhaps the Complainant needed more sick leave.

The Complainant submits that her line manager was very dismissive regarding concerns raised by the Complainant about her ability to carry out her work due to lack of access to folders. The line manager advised the Complainant that this would be sorted out over time. The line manager completed the Complainant’s performance review for 2017, which for the first time was not satisfactory.

The Complainant found her position increasingly difficult in early 2018. She began to suffer from work related stress, which was certified by her GP, and caused her to go sick from 5th February. The Complainant attended the company doctor on a number of occasions.   Her last visit to the company doctor was on 2nd May 2018, she was meant to be referred to see him six weeks after that visit, but the bank did not arrange for the visit, which must be done through HR.

The Complainant wrote to the Group Director of Operations on 23rd February 2018, outlining her concerns.

The Complainant submits that because of her employer’s conduct up to and including 5th February and the lack of interest in dealing with her health issues after that, including those issues caused by the bank’s treatment of her, she felt her position was no longer tenable. She wrote to the bank on 28th June 2018 informing them of this and the fact that she holds them responsible for the termination of her employment by constructive dismissal.

In oral evidence at the hearing the Complainant's representative stated that when the Complainant returned to work in November 2017, despite concerns raised by the company doctor, it was "business as usual", no one checked with her how she was, and no arrangement was made for a follow up visit.   The Complainant insists she was left to sort out her own medical problems. This was, in the eyes of the Complainant, well below the expected standards of a decent employer. Someone with Agoraphobia would struggle in such circumstances and the Respondent should have taken this into account.

In her own oral evidence at the hearing the Complainant sated that she was conscientious employee, who had never been complained of and had a high level of discretion. However, things changed in 2013 due to her illness. As her health deteriorated so too did her relationship with the bank.

The Complainant stated that when she was transferred to the other office in late 2017 they made a job up for her; the manager was expecting a level 5 person but got a (higher) level 4 person. On her return to her original office she says she was "spoken to like dirt", by another AM and although she complained about this she felt she was dealt with any way satisfactorily. The Complainant felt the issues were accumulating and in the end she was broken by everything.

In relation to the meeting she had with her line manager at the end of January 2018, the Complainant stated that this was not a good meeting, she had had gotten upset. She did agree that she had said that if a redundancy package was on the table she would look at it.

When asked to supply a comparator the representative for the Complainant stated that there was no real comparator, but it should be looked at objectively; how would you expect an employee to deal with such matters.

When asked why she had not utilised the bank's grievance policy the Complainant stated that she was not the type to complain. She had written to the Group Director of Operations, in a letter dated 23rd February, but was disillusioned with his response. She stated that the Respondent was aware of her difficulties.

The Complainant stated that the straw that broke the camel's back was when no medical appointment was made for her for June 2018. This exemplified the Respondent's attitude to her; she was unwell, and this was unfair treatment.

In concluding, The Complainant's representative stated that they had discussed putting in a grievance, but the Complainant was unable to do so as the Complainant was unwell, and it is hard to expect the same standards as a not unwell person. It is the Complainant's view that in exceptional circumstances an employee is excused from the need to process a formal process and this was such a case.

The Respondent provided a detailed written submission.

The Respondent denies the claims made by the Complainant.

By way of background the Respondent submitted that the Complainant was absent from work from 1st July 2013 to 8th October 2013 and was diagnosed as agoraphobia at this time. The Complainant was absent from work from 13th June 2017 to 12th November 2017 as a result of anxiety. The Complainant was absent from work citing work related stress from 8th January 2018 to 21st June 2018, except for attending on 29th & 31st of January 2018.

On 23rd February 2018, the Complainant contacted the Respondent's Group Director of Operations, outlining a number of concerns.   In this contact the Complainant requested that a "mutually acceptable solution" be found which would allow her "to leave the Company with some dignity and respect".   On 14th March 2018 the Group Director of Operations replied to the Complainant suggesting that it would be more appropriate that a member of the Respondent's Human Resources Department should meet with the Complainant to explore the issues that the Complainant had raised with him. The Director requested the Complainant contact two named members of the HR Dept. The Complainant did not contact either of them.

On 28th June 2018 the Complainant tendered her resignation from the Bank as she felt she was "surplus to requirement" on the basis that her illness and therefore she was constructively dismissed.

In response to the four issues listed by the Complainant in her WRC Complaint Form the Respondent submits:

(i) Regarding the Leadership Training Programme referred to by the Complainant, the Respondent has no record of any complaint, formal or otherwise, being made to the HR Dept. While the Complainant may have had an issue with the programme trainer no issue was raised with the Bank and therefore the Bank cannot be held at fault.

(ii) Regarding the Complainant's allegation that she was not allowed carry out staff reviews the Respondent submits that because the Complainant was absent for an extended period of time it fell to another manager to conduct reviews and objective setting in her absence. On the Complainant's return to work it was agreed that with another AM that the operational and personnel responsibilities would be divided between them. The Complainant did not object to these changes.

(iii) Regarding the claim that she was excluded from attending AM meetings the Respondent submits that the Complainant's manager says that she has no recollection of this being the case.

(iv) Regarding the claim that staff were advised to go to another AM about day to day matters such as sick leave the Respondent submits that this was agreed with the Complainant.

The Respondent submits that the Complainant had a large number of sporadic absences from work in 2016 and that she was spoken to about this, in line with policy.

Regarding the move to the other office in late 2017 the Respondent submits that the Complainant was given the opportunity to refuse to move but agreed to the move. There was specific work planned for the Complainant to carry out supporting the Data Access Team from a managerial point of view. The Complainant was not that she should not attend the company doctor but rather that if she wished to do so she should go through the HR Dept.

In response to the Complainants' assertion that when she returned to work on 3rd January 2018 her desk had been removed from her team, the Respondent submits that there was no assigned seating and the Complainant could have moved her work station if she had so wished. The Complainant was not informed of the changes to the work area as her manager was on annual leave and the Complainant was on sick leave around that time and it is standard practice not to contact employees when they are out sick.

Regarding access to IT files the Respondent puts forward that User Access rights are removed from long-term absentees and in this the Complainant was treated no differently than other employees.

A complaint about the way a manager had interacted with the Complainant was discussed with the complainant and her manager at a meeting on 29th January. The outcome was that the Complainant stated that she would be able work with the manager in question.

In response to the claim made that the Complainant's line manager suggested she move departments, the Respondent agrees that such a discussion did take place, but the line manager was not suggesting she did not want to continue working with the Complainant rather that she was offering the Complainant other opportunities if she wished to avail of them. The Respondent also denies there was a suggestion made by the Complainant's line manager that a severance package might be available, on the contrary, according to the Respondent, it was the Complainant who raised the issue of a possible redundancy.

The Respondent also denies that the Complainant's line manger suggested that the Complainant should take more sick leave, she did tell the Complainant that she be taking the advice of the company doctor and continuing with her phased return to work.

In oral evidence at the hearing the Complainant's line manager recalled the meeting at the end of January 2018. She stated that it was the Complainant who raised the issue of redundancy. Although the line manger did not shoot the idea down she did tell the Complainant she should talk to HR.

The Respondent denies that the Complainant was dismissed under discriminatory grounds. The Respondent submits that when it received the Complainant's resignation letter dated 28th June 2018, the Head of Employee Relations replied to the Complainant that as the Bank had not had an opportunity to resolve the Complainant's concerns it was eager to now do so through either formal or informal established procedures. The Bank also requested the Complainant reconsider her resignation and allowed a period of five working days to allow for reconsideration.   The Complainant's solicitor responded on 24th July 2018 outlining that his client's position was quite clear.

In concluding, the Respondent believes the Complainant acted prematurely in tendering her resignation. The Respondent also denies that it did not have an interest in dealing with the Complainant's health issues; rather the Complainant was continually referred to the company doctor where appropriate. If, as the Complainant contends, she should have been referred to the company doctor again on 13th June 2018, and this was not done by Hr, this was not an unusual occurrence.

The Respondent believes that the Complainant's failure to utilise the internal formal or informal grievance procedures clearly shows that she was not interested in resolving her concerns through the suggested and recommended channels.

Even after she had tendered her resignation the Respondent asked her to reconsider her decision. The Respondent did not wish to terminate the Complainant's employment and believe it was unreasonable for her to do so.

I have considered this matter carefully.

I am satisfied that the Complainant suffered from a disability, as diagnosed in 2013 and it would seem that many of the difficulties she had at work stemmed from this time. The question to be answered is whether the Respondent's actions in dealing with the Complainant were discriminatory, i.e. was the Complainant treated less favourably' in the ways she has alleged, than a non-disabled colleague would have been in similar circumstances.

When she returned to work in Nov 2017 she had been passed fit to return by the company doctor and it would seem no particular accommodation was required to ensure she was able to carry out her AM role. The Complainant may have had some of her Performance Review responsibilities removed but I find that this was because she had been absent for some time and therefore could not run the rule over her team members in the same manner as a peer who had not been absent to the same extent. In any case the complainant agreed to the shuffling of responsibilities.

There is no doubt that the move to the other city office was badly-handled but I believe this was due to poor communications rather than an attempt to undermine the Complainant's status.

On her return to her original office the Complainant's desk was moved a distance from her team but this was a small distance, which would not have unduly impacted on the way she could interact with her team. I view the Complainant's desk position as an outcome of the revamp of the office layout rather than a sinister action on the part of the Respondent.

Although the Complainant's relationship with her line manager was not what is should have been no evidence was adduced to support a contention that this poor relationship was caused by the Complainant's disability.

I find that the Respondent was aware of the Complainant’s grievances mainly by the number of day to day issues she raised after her return to work in 2017 and secondly, by her letter to the Group Director of Operations.   I find the Respondent did not react to her grievances as proactively as it should have and more could have been done to get the matters resolved. However, the Complainant never utilised the Respondent's formal grievance procedures to try and get resolution to her difficulties. At the hearing the Complainant's representative stated that she did not use the formal company grievance procs as she was not well enough to do so. Whatever merit this argument may have it does not explain why the Complainant did not utilise either formal or informal grievance procedures as suggested by the Respondent after she had tendered her resignation, at which time the Complainant was getting legal advice.

The non-utilisation of the formal grievance procedures is important in the context of an alleged constructive dismissal. The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of a contract of employment. It is, after all, a breach of a legally binding contract.

In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

It is relatively easy for an employee to terminate their employment by simply resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

‘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 in order to determine if it is such that the employee cannot be expected to put up with it.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

In this instance I do not believe the actions of the Respondent were such to justify the unilateral termination of the employment contract.   On the evidence adduced, I do not find the Complainant's situation to have been "intolerable".   I also find that the Complainant did not act reasonably in resigning and without first having utilised the grievance procedure to attempt to remedy her complaints.

No evidence was adduced at the hearing to support the Complainant's claim that she was discriminated against in relation to promotion or training.

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

I have examined whether the Complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the 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 continued:

 “It is only if these 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 was no infringement of the principle of equal treatment”.

In order to determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the complainant must establish that she is covered by the relevant discriminatory ground.

Second, she must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this instant case, I am satisfied that the Complainant has a disability.

However, I am not satisfied that the Complainant was constructively dismissed. Nor do I believe she missed out on promotion or training or was victimised as alleged.

In considering the third tier of the test, I have noted that the Respondent failed to deal with the Complainant's issues comprehensively. While this is not satisfactory from the Complainant’s side, the fact that the treatment was less favourable than what would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground has not been proven.

I find that the complainant has not established a prima facie case and her complaint therefore cannot succeed.

This complaint is unfounded.

Disability, Performance, Grievance Procedures