ADJUDICATION OFFICER DECISION.

Adjudication Reference: ADJ-00017540

	Complainant	Respondent
Anonymised Parties	An official	A trade union.

Complaint(s):

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-00022685-001	17/10/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00022685-002	17/10/2018
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014	CA-00022685-003	17/10/2018

Date of Adjudication Hearing: 24th January and 18th February 2019.

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant took up employment with the respondent on 23 June 2005 in the role of Senior Industrial Relations Officer.

This complaint was received by the Workplace Relations Commission on 17th October 2018.

Summary of Complainant’s Case:

INTRODUCTION

The Complainant has brought his complaints against the Respondent under section 77 of the Employment Equality Act, 1998, as amended; section 6 of the Payment of Wages Act, 1991, as amended, and Schedule 2 of the Protected Disclosures Act, 2014. The Complainant took up employment with the respondent on 23 June 2005 in the role of Senior Industrial Relations Officer. By letter dated 16 September 2005, the then General Secretary of the Respondent, confirmed the Complainant’s appointment, and enclosed a copy of the terms and conditions of his employment.

The Complainant has extensive experience, at the highest level, in industrial relations.

The Respondent is a trade union representing staff in the Republic of Ireland, Northern Ireland, and those employed by Irish institutions in Great Britain and overseas.

The Complainant has an exemplary record of service with the Respondent.

CHRONOLOGY OF EVENTS

The Complainant suffers from a rare form of nocturnal epilepsy, and was absent on certified sick leave, from 23 May 2015 until 8 October 2018 when he was eventually allowed to return to work. Epilepsy is a recognised disability within the meaning of the Employment Equality Act, 1998, as amended.

The complaint was certified by his doctor, Doctor as fit to return to work on 12 March 2018.

The Complainant wrote to then General Secretary, inquiring in relation to the Respondent’s return to work policy. By email dated 7 November 2017, the Respondent stated that he ‘did not think that the time was right’ for the Complainant to return to work. He then stated that if the situation changed dramatically, then the Complainant would be independently assessed prior to a return to work.

The Complainant responded immediately to the Respondent asking him to assist him in moving forward with the process. He stated ‘I would appreciate it if you would forward to me by return, all correspondence between my employer and Irish Life regarding myself. I have never received an opinion from Irish life regarding my fitness for work. I think this would be very helpful at this time. Your opinion, while very personal, and no doubt well meaning, was not based on any medical expertise or training’.

On 12 February 2018, the Complainant wrote to General Secretary once again in an email titled ‘Rehabilitation’. The email expresses his frustration with the lack of engagement by the Respondent and pleads with the General Secretary to meet with him to make arrangements for his return.

On 20 February 2018, the General Secretary declined to meet with him and requests that he direct all issues in relation to his employment to the Respondent’s legal representative. He confirmed that the return to work policy "is very clear" and that the Complainant would need to furnish the Respondent with a certificate from his Doctor confirming that he is fit to carry out his duties prior to his return to work. He would also be subject to a medical examination.

On 21 February 2018, the Complainant’s solicitor wrote to the Respondent’s solicitor stating that it was the Complainant’s intention to return to work on a full-time basis as soon as possible. In the meantime, the Complainant wanted to return on a phased basis, which would transition to full time employment as his health continued to improve.

By email dated 12 March 2018, the Complainant sent the General Secretary a copy of his medical certificate from his GP, confirming his fitness to return to work from 19 March 2018 on a phased basis.

On 27 March 2018, the Complainant wrote to the Respondent’s new General Secretary, requesting a meeting.

On 28 March 2018, the Respondent wrote to the Complainant enclosing a Certificate of Continued Disablement.

On 29 March 2018, the Respondent’s solicitor wrote to the Complainant’s solicitors, informing them that the new General Secretary would not be meeting with the Complainant. He also noted that he expected a comprehensive medical report relating to the Complainant’s condition be supplied.

On 3 April 2018, the Complainant wrote to the account’s manager in the Respondent organisation, advising him that he had completed the documentation and again requested a meeting with the General Secretary in advance of submitting the form.

On 24 April 2018, the Respondent’s Solicitor wrote to the Complainant’s Solicitors, again requesting the information while ignoring the Complainant’s request for a meeting.

By correspondence dated 3 May 2018, the Complainant’s solicitors wrote to the Respondent’s solicitors notifying them that the Complainant did not currently have any employment issues with his employer that required legal intervention and that he was not agreeable to having his employment relationship conducted through a third party, with whom he has no contractual relationship.

In this letter, it was pointed out that his employer’s refusal to engage directly with him, as their employee, exacerbated the Complainant’s stress levels which could result in triggering an epileptic seizure. Furthermore, the Respondent’s refusal to assist the Complainant in the completion of his medical questionnaire was risking future income continuance payments from the provider.

By email dated 9 May 2018 the Respondent’s solicitors stated that the Respondent could not meaningfully engage with the Complainant’s 'rehabilitation/return to work' unless it had access to the Complainant’s medical records/reports.

On 19 June 2018, the Complainant wrote directly to his employer again seeking a meeting to discuss the steps needed to allow his return to work. He also highlighted that the Union had no right to access his medical records and that; in any event, he had already provided these to the Respondent’s Doctor.

On 13 July 2018, the Complainant’s solicitors wrote to the General Secretary informing him of the Complainant’s intention to return to work on a phased basis.

On the same day, the Complainant’s solicitors also wrote to the income continuance provider in the above terms.

On 17 July 2018, the Respondent’s solicitors wrote to the Complainant’s solicitor reiterating the Respondent’s request for access to the Complainant’s medical records.

On 23 July 2018, the General Secretary wrote to the income protection provider and confirmed that he would not meet with the Complainant until he provided a medical report.

On 25 July, the Complainant’s solicitor confirmed to the General Secretary that the Complainant intended to return to work and would be available for a medical assessment in advance, if required.

On 27 July 2018, the Complainant obtained a further, up to date medical report from his GP.

On 31 July 2018, the General Secretary wrote to a colleague in an internal email stating that they needed to discuss the ‘possible return of the Complainant to the staff team’.

On 31 July 2018, the General Secretary again reiterated to the Complainant that the Union cannot be expected to make any determination on his return to work without having the benefit of considering all the relevant medical information.

The above letter resulted in the Respondent, the Complainant’s employer, finally arranging to have him medically examined by Dr G, Specialist in Occupational Health on 16 August 2018. The details of this appointment were communicated to the Complainant by the General Secretary in a letter dated 31 July 2018. In this same letter, the General Secretary again reiterated the Unions demand for access to the Complainant’s medical records. The General Secretary also stated that he would be in touch with the Complainant regarding his fitness to return to work, once he had received Dr G’s report.

In advance of attending Doctor G, the Complainant forwarded copies of his medical records to her and consented to her contacting his Doctor for any further information she might require. Dr G acknowledged receipt of his medical records and confirmed that his medical records would not be released to any third party without his prior consent.

On 16 August 2018, the Complainant attended a medical assessment with Doctor G. Dr G told the Complainant that she would be certifying him as fit to return to work on a phased basis and she would prepare her report immediately confirming this and forward it to his employer.

In an email dated 30 August 2018, the General Secretary has now premised the Complainant’s legal entitlement to return to work with a proposed restructuring of the Union. He confirmed that he is in receipt of Doctor G’s medical report and again asked to be furnished with the following medical reports relating to the Complainant:

Four doctors were named – (I have removed the names).

By email dated 3 September 2018, the Complainant asked the General Secretary for a copy of Doctor G’s medical report. When the Complainant subsequently spoke to JH in the union he was informed that the General Secretary had stated his position in his email dated 3 September 2018 and this had not changed. The Union would not be sharing Doctor G’s medical report with him until he furnished him with his medical reports and medical records.

By letter dated 5 September 2018, to the General Secretary , delivered by courier and sent by email, the Complainant’s solicitor pointed our inter alia "that despite the fact that Doctor G, a Specialist Occupational Health Physician, engaged by the Union had certified that the Complainant was fully competent to undertake and fully capable of discharging the duties attached to his position on a phased basis, you continue to refuse to allow him return to work".

It was further pointed out that "it is incredible that the General Secretary of the Union is not aware that there is no legal obligation on the Complainant to share his personal medical records with his employer and that you have no entitlement to withhold Doctor G’s report or place pre-conditions on its release to him". No response was received to the above letter.

By letter dated 9 October 2018, the Complainant’s solicitor wrote to the Union again identifying that the Union was without a lawful basis refusing to allow the Complainant to return to work. It was pointed out, inter alia, that the income continuance provider had advised the Complainant of its intention to suspend income continuance payments to the Respondent unless the Complainant submitted a Certificate of Continued Disablement. It was pointed out that the Complainant was not in a position to furnish such a certificate as he had been certified as fit to return to work by not only his own Doctor, but also by the Occupational Health Specialist engaged by the Union.

It was explained that the Complainant would have no source of income when the income continuance payments were suspended, and, in the circumstances, he would be presenting "himself for work at his employer’s office on Tuesday next 16th October 2018 at 9 a.m.". No response was received to this letter. However, the Complainant received an email on 9 October 2018 at 16:21, from a union colleague, Mr M, inviting him to a return to work interview with him and another colleague on Tuesday 23 October 2018 at 9 a.m.

In the same email Mr. M, who had previously been reporting to the Complainant, advised him that he was now the Complainant’s line manager and he would now be reporting to him. Mr. M stated at the return to work interview ''we will advise you of the employment(s) you will be responsible for".

This is the first time that the Complainant was informed of the unilateral and fundamental change to his contract of employment without prior consultation or agreement. Mr. M also "updated" that a "voluntary severance offering is now available to you and PWC will be made available to you to discuss the VS process and your figures should you request it, as they will be to all colleagues".

During the course of the Complainant’s attempts to return to work he was excluded from the process of applying for two new roles within the Respondent organisation. Given the Complainant’s significant experience he would have been a suitable candidate for both roles. We believe the Respondent has purposely excluded him from the process and failed to make any reasonable accommodation in respect of these opportunities.

OUTLINE SUBMISSIONS – EMPLOYMENT EQUALITY ACTS 1998 -2015

Section 6(2) of the Employment Equality Acts 1998 to 2015 ("the Act") provides for disability as a discriminatory ground. Section 6(1) of the Act defines discrimination as occurring where a person is treated less favourably that another person is, has been, or would be treated in a comparable situation on the discriminatory grounds which exist.

The Complainant suffers from a disability and has been trying to engage with his employer regarding his return to work since November 2017. Rather than facilitating his return to work, the Respondent has instead done everything in its power to obstruct his return to his role as Senior Industrial Officer. The Complainant has been directly discriminated against on the basis of his disability, and this disability is clearly linked with the Respondent’s complete failure to engage with their employee.

The Respondent submits that the Complainant must prove that he is a person with a disability within the meaning of the Acts. The Complainant has ample medical evidence to support the fact that he suffers from epilepsy. The Respondent has been on full notice of his disability since the early days of his employment.

The definition of disability contained in 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,

(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;”

The definition of disability in the Acts sets out in general terms the broad nature of conditions or impairments which could give rise to a disability for the purposes of the Acts. The definition does not require that a disability meet a threshold of severity for the condition or impairment to meet the definition for the purposes of the legislation.

The jurisprudence of the Labour Court and Equality Tribunal shows a broad, non-exhaustive list of conditions that have been found come within the definition of disability. There is no doubt that the Complainant’s condition comes within the definition of a disability as accepted pursuant to the Acts.

In the case of An Employee v. A Broadcasting Company [2012] 23(2) E.L.R. 88 direct discrimination on grounds of disability was found to have occurred in relation to the complainant ‘s assignment of roles within the respondent, placing of the complainant on a leave period and delay to allow her to return to work. Whilst the employer argued that the complainant had been treated in the same manner as other employees in relation to the assignment of roles within the organisation, this was found to constitute direct discrimination on grounds of disability as the same rule was applied to different circumstances having regard to the disability of the complainant.

This recognises that effectively that a disability is not an irrelevant consideration and its particular requirements must be taken into account before decisions are made which can adversely affect a person with a disability and assumptions cannot be made in relation to the application of existing rules or practices to a disabled person. This may amount to less favourable treatment to an employee, as in the Complainant’s case.

It is apparent from the facts in this case that the Respondent did not act reasonably towards the Complainant for the reasons outlined below.

The Respondent did not engage with the Complainant in relation to facilitating his return to work; The Complainant tried to engage with his employer with regard to his return to work since November 2017. Rather than facilitating his return to work, the Union has instead done everything in its power to obstruct his return to his role as Senior Industrial Relations Officer.

Section 16(3) of the Acts imposes the obligation of reasonable accommodation on employers for employees and prospective employees. Employers are expected to take a proactive approach in assessing suitable measures with which an individual with a disability can be accommodated in the workplace. It requires an individualised approach by employers. In the Complainant’s case, despite assuring him that he would be assessed, no assessment was made of his ability to return to work until several months after he was deemed fit to return.

At Paragraph 24 of the Respondent’s submission, they state that the Respondent ‘entirely lawfully, reasonably, prudently and fairly sought access to the Complainant’s medical reports / or records to facilitate their legal obligations towards him and to ensure any requested return to work made by him was properly and medically considered’.

With respect, the above assertion is entirely misconceived. There is no legal basis for viewing an employee’s medical records in order to facilitate his return to work. Such a request is in breach of the General Data Protection Regulation as it is entirely unnecessary to expect an employee to supply sensitive medical information to their employer, not least a third party, namely the respondent’s legal representatives.

An employer need only satisfy themselves of an employee’s fitness to return to work, which the Complainant supplied in the form of the letter of 13 March 2018. The Complainant had no objection to being medically assessed; however, no reasons were provided as to why this was not arranged until August 2018.

OUTLINE SUBMISSIONS – PROTECTED DISCLOSURES ACT 2014

The Respondent’s position is that the Complainant is not entitled to relief pursuant to the Protected Disclosures Act, 2014. Their position is that the WRC does not have jurisdiction to hear this claim as the complainant did not make a protected disclosure. It is denied that the jurisdiction of the WRC to hear this complaint is in issue for the reasons outlined below.

The Respondent failed to adequately deal with the Complainant’s Protected Disclosure, which was made within the meaning of the Protected Disclosures Act 2014.

By letter dated 24 March 2016, the Complainant wrote to the then General Secretary of the Union advising him that he wanted to make a Protected Disclosure pursuant to the Protected Disclosures Act, 2014.

The Respondent failed to constructively engage with the Complainant. Ultimately, having been left with no other option, he decided to make disclosures to the five prescribed bodies.

By letter dated 19 September 2016, another company of solicitors wrote to the then members of the General Council to advise them of the number of attempts the Complainant had made to bring his concerns to the attention of his Employer and to make it clear that his concerns were separate and distinct from those of any previous or ongoing investigation.

The letter also stated that the Complainant was still willing to attend a meeting of the General Council with his solicitor to disclose these concerns.

By letter dated 23 September 2016, the Solicitor for the Respondent, noted that the Complainant had requested a meeting with the General Council of the Union and that he had met his clients to take their instruction. The Solicitor sought details of the disclosures made to the designated bodies despite the fact these disclosures are protected. The furnishing of these disclosures was made a pre-condition of the General Council.

The Complainant and his solicitor met with the Respondent solicitor and the President on the 27 March 2017 and at that meeting the Complainant set out in detail his reasonably held concerns, furnished documentation for examination and discharged all queries raised by them.

It was agreed that the Complainant would prepare a submission and attached the relevant documents as appendices. This submission was completed and a copy sent to the Respondent solicitors on 8 June 2017.

By letter dated 20 July 2017, solicitors for the Respondent wrote to the Complainant’s solicitor stating that the Respondent had requested the assistance of a well-known, highly respected facilitator / mediator/ investigator to help them in the matters raised by the Complainant.

The Complainant’s Protected Disclosure was made within the meaning of the Protected Disclosures Act 2014.

On 26 October 2017, the Complainant and his legal advisers met with the Investigator and raised amongst others the following issues:

· His Protected Disclosure;

· Breach of Confidentiality by Union;

· Protection of Employees who raise Protected Disclosures;

· Culture within Union of alleged misappropriation of funds.

The Investigator finalised his report on 2 January 2018.Paragraph 2.1 of the report confirms that the solicitors for the Respondent agreed that the protections afforded by the Protected Disclosures Act 2014 apply to the assertions and disclosures which were the subject of the investigation. Accordingly, his report was prepared in that context.

The Investigator specifically agreed that the disclosures did amount to disclosures for the purposes of the Act. Notwithstanding this assertion, for the purposes of this Act information is “relevant information” if the following criteria are met: -

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.

(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.

The Complainant was penalised as a result of making the Protected Disclosure;

The enhanced protection for whistleblowers under the Protected Disclosures Act 2014 aims to encouraging whistleblowing. However, the Complainant was penalised by his employer for raising these concerns.

“Penalisation” in the Act means any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal.

OUTLINE SUBMISSIONS – PAYMENT OF WAGES ACT, 1991

The Respondent has failed to pay the Complainant the wages due to him pursuant to his contract of employment. As outlined above, the Complainant made numerous attempts to engage with his employer regarding his return to work since November 2017.

The Complainant received 75% of his salary from Income Protection Insurance. The Respondent’s failure to engage with him in relation to his return to work has resulted in him being disentitled to his full salary for almost one year. This is clearly contrary to the Payment of Wages Act, 1991, as well as his contractual entitlements.

The Respondent’s position is that the Complainant had no entitlement to the payment of any wages for days he did not attend work while on medically certified sick leave or otherwise. It is incorrect to characterise his claim in this way. The claim relates to the period of time that he was medically certified as fit to return to work as of 13 March 2018, yet the Respondent refused to allow him to return to work. The Complainant was then placed in a position where he was unable to avail of his contractual entitlement to work and receive a full salary.

In their submission, the Respondent incorrectly refers to the Complainant being unfit to work, and accordingly, not holding any entitlement to wages unless contractually agreed. The Complainant was deemed fit to work and repeatedly attempted to engage with the respondent to allow him to return to work. Their refusal left him at a significant financial loss.

The Respondent’s sick pay policy is available.

The Complainant’s complaint was submitted to the WRC on 18 October 2018. It is denied that his claim for redress is time barred, as submitted by the Respondent. The Complainant attempted to engage with his employer in good faith to agree a date for his return to work. The Respondent’s failure to engage with him resulted in a continuing financial loss to the Complainant. This failure on the part of the Respondent is a continuing breach of an employer’s obligations to properly pay an employee pursuant to the terms of the Payment of Wages Act, 1991.

Any suggestion that the Complainant’s claim is out of time is incorrect and it is submitted that his claim is within time and within the jurisdiction of the Adjudication Officer.

CONCLUSION

It is submitted that the law is clear. Employers are required to act reasonably towards its employees and treat disclosures made by employees seriously. Employers should not penalise employees for making these complaints. Employers must treat an employee reasonably in facilitating their return to work after a period of ill health.

The Respondent did not act reasonably. The Respondent dismissed the Complainant’s complaints and refused to accept that these amounted to protected disclosures pursuant to the legislation. The Complainant was not given an opportunity to liaise directly with his employer in relation to his return to work.

It is evident that the Complainant has been treated appallingly by the Respondent and we submit that his claims should succeed on that basis.

Summary of Respondent’s Case:

THE PAYMENT OF WAGES ACT, 1991

The Complainant has alleged wrongly, “my employer has not paid me or has paid me less than the amount due to me”. He has further alleged: “The Complainant has been trying to engage with his employer regarding a return to work since November 2017. The Complainant receives 75% of his salary from Income Protection Insurance. His employer’s failure to engage with his return to work has resulted in the Complainant not returning to his full salary for nearly one year. This is contrary to the Payment of Wages Act, 1991 as amended.”

There is no basis for a referral by the Complainant under the Payment of Wages Act, 1991. The Complainant only has an entitlement to the payment of wages under the statutory scheme provided for in the Payment of Wages Act in accordance with the terms of the Act or his contract of employment. The Complainant had no entitlement to the payment of any wages for days he did not attend work while on medically certified sick leave or otherwise.

The Union operates a generous sick pay scheme which provides for full pay for the first 6 months and ½ pay for the next 6 months. The Complainant went on certified sick leave on the 23rd May 2015. He was paid his full salary from the 1st of June 2015 to the 30th of November 2015 in accordance with the terms of the sick pay scheme. PHI payment from an income continuance provider commenced on 1st December 2015 until 31st December 2018 during which time the Complainant received 75% pay. The Complainant did not return to his employment until Tuesday 23rd October 2018 on a phased basis – initially 3 days per week. While the reasons why the Complainant did not return to his employment are disputed; it remains a fact that he had no entitlement to the payment of wages under the Payment of Wages Act 1991 until and unless he returned to provide a service to the Union or under an agreement with the Union following his having exhausted the sick pay scheme.

During the Complainant’s absence from work on certified sick leave he was paid 75% of his salary from an Income Protection scheme insured by the Union for the benefit of its staff. As such he was in receipt of income until his employment ceased. This benefit could only have been paid to him if he was certified as being unfit to work.

As an employee who was unfit to work he had no entitlement to any wages unless contractually agreed and the Payment of Wages Act, 1991 does not aid him in this regard. As stated above, the Complainant fully exhausted the Union’s generous sick pay scheme.

Strictly without prejudice to the foregoing, in so far as it is alleged by the Complainant that there has been a breach of his rights under the Payment of Wages Act, 1991 (which is denied) then his claim for redress is time barred. The Payment of Wages Act 1991 provides: ”(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.”

The Complainant commenced his period of sick leave on the 23rd May 2015. He exhausted the contractual sick pay scheme on the 30th November 2015. As such any claim he had for alleged unpaid wages is considerably out of time at this juncture. Furthermore, the passage of time associated with this matter cannot be cured by the Complainant seeking an extension of time (although it is noted that no extension of time has been sought on behalf of the Complainant).

Simply put, this complaint pursuant to the provisions of the Payment of Wages Act, 1991 must be dismissed.

THE PROTECTED DISCLOSURES ACT, 2014

The Complainant is not entitled to any relief pursuant to the provisions of schedule 2 of the Protected Disclosures Act 2014 or at all. The Complainant in his claim form has asserted that he was “penalised or threatened with penalisation by my employer for having made a protected disclosure under the Protected Disclosures Act 2014”. The Complainant contendsin his claim form that the Act of penalisation was the Union’s “complete failure to engage with their employee in regard to his return to work and purposely excluding him from job opportunities …”. This allegation is without foundation and is categorically denied.

Schedule 2 of the 2014 Act, section 12 provides: “Where an employee has made a protecteddisclosure …” he may “present a complaint to a rights commissioner that the employee’s employer has contravened section 12(1) in relation to the employee.”

The Complainant, despite his assertions to the contrary, did not make a protected disclosure to his employer. This was the findings of the report commissioned by the Union into the alleged protected disclosure contended for by the Complainant. A full investigation was commissioned by the Union into this allegation and the Investigator, being most experienced in these matters, concluded that there was no protected disclosure.

The Investigator completed his investigation process and issued his report on the 2nd of January 2018.

As such the Complainant is not a person who has any entitlement to make a complaint under the 2014 Act. The Complainant did not, in point of fact, make a protected disclosure and therefore he has no entitlement to maintain any claim under schedule 2 of the Act. This is an issue which goes to the jurisdiction of the WRC to hear this complaint.

EMPLOYMENT EQUALITY ACT 1998 - 2004 (as amended)

The Complainant has made a series of wide-ranging complaints under this Act.

He is not a person who was subjected to discrimination whether on the grounds alleged or at all.

The Complainant is put on full proof that he is a person with a disability within the meaning of the Employment Equality Acts.

Strictly without prejudice to the foregoing, the Complainant’s primary complaint under this Act appears to be an alleged failure to accommodate his return to work. Such an allegation is entirely denied by the Union.

The Complainant, a senior employee, went on sick leave in May 2015. He availed fully of the Union sick leave procedures and was admitted into the Income Continuance Scheme run by the Respondent. During this time the Complainant made an alleged complaint termed by him as being a protected disclosure. This complaint was treated seriously by the Respondent and a specialist investigator was appointed to investigate it. He concluded his investigation and issued his report on the 2nd January 2018 and determined there was no protected disclosure.

In March 2018 some 2 years and 10 months following his going on sick leave the Complainant indicated he wished to arrange a phased return to work. This request was made through his Solicitor, in the form of legal correspondence and without any supporting medical certification or explanation of note.

Entirely lawfully, reasonably, prudently and fairly the Respondent sought access to the Complainant’s medical reports / or records to facilitate their legal obligations towards him and to ensure any requested return to work made by the Complainant was properly and medically considered. Thereafter a considerable body of correspondence passed between the parties on a series of issues, but which ultimately culminated in the Complainant’s return to work on the 23rd October 2018. Full copies of this correspondence shall be relied upon by the Respondent at the hearing of this action for its true meaning and effect. Emphasis will be placed by the Respondent on the fact the Complainant failed to provide this medical documentation to the Respondent and the fact that this resulted in delay in a comprehensive medical assessment of him taking place.

Ultimately the Complainant was assessed by Dr. G on the 16th August 2018 following the Complainant agreeing that she could access his medical records. Despite its reasonable requests for access to his medical records the Complainant refused to provide them to his employer so they could assess what steps/accommodations were necessary to ensure his return to work. This has remained the position to date. Furthermore, during this time namely March 2018 until October 2018 the Complainant was in receipt of PHI from the income continuance provider and therefore he was not actually (and on the basis of his own certification) fit to return to work.

The Complainant was not therefore the victim of any discrimination by reference to a request he provide his medical reports / or records to his employer. This request was entirely reasonable and appropriate having regard to an absence of two years and ten months (at the time it was originally made) and ultimately the Complainant was absent from work on certificated illness leave for almost 3.5 years. The Adjudication Officer is requested to take the exceptional nature of the illness into account in assessing and determining on the reasonableness of the Union’s request for access to medical documentation in advance of any detailed discussion of a return to work plan.

It should be noted that emphasis will also be placed on the fact the Complainant alleged, again through Solicitors correspondence, that it was alleged the Union was exacerbating the Complainant’s stress and that stress is a factor that triggers epileptic seizures, a condition that he suffers from (see letter of 3rd May 2018). In all of the circumstances it would have been remiss of the Union not to seek medical information from the Complainant concerning his conditions, prognosis, diagnosis, fitness to return to work and whatever accommodations might be required for him. There is no principal of law that prevents the Respondent from doing so and indeed the Respondent will rely, at the hearing of this action, on the fact that it is duty bound to adequately assess the Complainant and his condition in advance of considering any request for reasonable accommodation. At a basic level this involves the obtaining of relevant medical evidence and the Union shall rely on the decision of the Court of Appeal in Nano Nagle in this regard.

Lest there is any real attempt to advance a criticism of the Respondent for engaging a solicitor to liaise with the Complainant; reference must be made to the fact it was he who commenced the exchange of legal correspondence with the Respondent. In such circumstances it is entirely appropriate and normal for an employer to engage its solicitors to respond to such correspondence. This is not evidence of any discrimination rather is simply a matter of effective administration.

Again, the Complainant’s assertion that his correspondence was not adequately addressed and that his queries were not adequately responded to by the Respondent must be rejected in circumstances where the Respondent, simply put, were not in possession of sufficient information to deal with them in the absence of the information it required.

The Complainant was not excluded from the process of applying for roles within the Union and it is entirely rejected that there is any evidence of discrimination under this heading or due to the fact the business of the Union and its organisation developed during the 3.5 years the Complainant was absent from it.

It is denied that the Complainant was the victim of discrimination whether as alleged or at all. He was not discriminated against. He was not victimised or penalised. He was treated entirely fairly. He was fully supported while out on extensive sick leave. He received the full benefit of the sick pay scheme, he obtained the benefit of the income protection scheme funded by the Respondent, was in regular contact with the Respondent both in an official and unofficial capacity and he was returned to work on a phased basis.

Findings and Conclusions:

The Complainant claims that he made his first attempt to return to work in November 2017, he was not certified fit to return to work by his own GP until 19th March 2018, and then only on a phased basis.

I note that the Respondent General Secretary (by email dated 7th November 2017) stated that “he did not think that the time was right” for the Complainant to return to work. It would appear that there was an exchange of emails between the Complainant and the Respondent General Secretary on this date and a tacit type of agreement was reached that the Complainant would not return to work until such time as the individual conducting the investigation into Protected Disclosures had completed his investigation. I note that the investigation took place between September 2017 and early January 2018 when the Investigator submitted his final report.

Following an exchange of emails in February 2018 the relationship between the Complainant and his employer appears to have deteriorated to such an extent that the Respondent on 20th February have refused the Complainant’s request for a meeting and have suggested that if there were any employment issues to be discussed they should be done by the solicitors for both parties.

In this same email dated 20th February 2018 the Respondent has stated in relation to the Complainant’s intention to return to work “In relation to returning to work, the policy is very clear: you need to provide a certificate from your doctor confirming that you are fit to carry out your normal duties. The Respondent will require that the Respondent’s medical advisor would assess and evaluate you prior to taking you back to work. Similarly, Irish Life may require a similar medical examination to remove you from income continuance.”

These activities are very much in line with the procedure outlined in the Respondent’s policy on Sick Leave. This policy states:

“In all cases of sick absence, the Respondent reserve the right to refer the case to a doctor nominated by the Respondent. This may involve a medical examination of a staff member.

Before returning to work after a serious or prolonged sickness, the Respondent may refer the staff member for examination to a doctor nominated by the Respondent”.

On 27 March 2018, the Complainant wrote to the Respondent’s new General Secretary, requesting a meeting.

On 24 April 2018, the Respondent’s Solicitor wrote to the Complainant’s Solicitors, again requesting the information while ignoring the Complainant’s request for a meeting.

On 19 June 2018, the Complainant wrote directly to his employer again seeking a meeting to discuss the steps needed to allow his return to work. He also highlighted that the Respondent had no right to access his medical records and that; in any event, he had already provided these to the Respondent’s Doctor.

On 13 July 2018, the Complainant’s solicitors wrote to the General Secretary informing him of the Complainant’s intention to return to work on a phased basis.

On 17 July 2018, the Respondent’s solicitors wrote to the Complainant’s solicitor reiterating the Respondent’s request for access to the Complainant’s medical records.

On 25 July, the Complainant’s solicitor confirmed to the General Secretary that the Complainant intended to return to work and would be available for a medical assessment in advance, if required.

On 27 July 2018, the Complainant obtained a further, up to date medical report from his GP.

On 31 July 2018, the General Secretary wrote to a colleague in an internal email stating that they needed to discuss the ‘possible return of the Complainant to the staff team’.

In advance of attending this medical examination the Complainant forwarded copies of his medical records to Dr G and consented to her his own doctor for further information if required.

By email dated 30th August 2018 the Respondent General Secretary informed the Complainant of a restructuring within the organisation. He confirmed that he had a copy of the report from Dr G and again asked to be furnished with medical reports from 4 different doctors that the Complainant had been attending. The Respondent refused to supply the Complainant with a copy of Dr G’s report until such time as he submitted his medical reports and medical records.

By letter dated 5th September 2018 the Complainant’s solicitor wrote to the Respondent General Secretary and clearly stated “"that despite the fact that Doctor G, a Specialist Occupational Health Physician, engaged by the Union had certified that the Complainant was fully competent to undertake and fully capable of discharging the duties attached to his position on a phased basis, you continue to refuse to allow him return to work".

I find the behaviour of the Respondent in this matter to be unacceptable and the demand for the Complainant’s medical records and reports is certainly a breach of their own sickness leave policy.

The Complainant has stated that “it is incredible that the General Secretary of the Respondent is not aware that there is no legal obligation on the Complainant to share his personal medical records with his employer………” I would have to share these views.

The question that must be answered in this complaint is was the behaviour and actions of the Respondent an act of discrimination under the Employment Equality Act or was it a sustained process of penalisation against the Complainant under the Protected Disclosures Act 2014 or was it neither or both?

The Respondent claims that they entirely lawful, reasonably, prudently and sought access to the Complainant’s medical reports / or records to facilitate their legal obligations towards the Complainant and to ensure any requested return to work made by the Complainant was properly and medically considered. According to their own sickness policy this was not the course of action they should have followed, the assessment of the Complainant’s medical condition should have been established via the Occupational Health Adviser, they eventually did and yet continued to insist on the medical records and/or reports.

The Complainant has lodged three separate complaints under the Payment of Wages Act, the Employment Equality Act and the Protected Disclosures Act, two of which address the treatment of the Complainant’s attempts to return to work.

In relation to the Complaint made under section 77 of the Employment Equality Act, 1998 I find that the complaint is well found. The activities of the Respondent were discriminatory, no reasonable accommodations were made to let the Complainant return to work when declared fit by his own GP. The Complainant was also denied the opportunity to apply for two promotional positions that became vacant while he was absent from work. The Respondent failed to follow their own procedure on sick leave that would have been followed in the case of any other employee.

In relation to the complaint referred under Schedule 2 of the Protected Disclosures Act 2014 I note that the Respondent claims that the Complainant did not make a protected disclosure and therefore has no entitlement to maintain a complaint under Schedule 2.

The Respondent utilised the services of a highly respected and credible investigator to investigate the disclosures made by the Complainant. Clause 2.1 of the investigator’s report reads:

“In the documents with which I was furnished the matters forming the subject matter of this investigation are described as ‘protected disclosures. It was also made clear to me that the Solicitors for the Respondent have agreed with the Complainant’s solicitors that the protections afforded by the Protected Disclosures Act2014 apply to the assertions and disclosures which are the subject of this investigation. Accordingly, this report is prepared in that context”.

The investigator specifically agreed that the disclosures did amount to disclosures for the purposes of the Act.

“Penalisation” in the Act means any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(j) suspension, lay-off or dismissal,

(k) demotion or loss of opportunity for promotion,

(l) transfer of duties, changes of location of place of work, reduction in wages or change in working hours,

(m) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(n) unfair treatment,

(o) coercion, intimidation or harassment,

(p) discrimination, disadvantage or unfair treatment,

(q) injury, damage or loss, and

(r) threat of reprisal.

In consideration of this complaint I find that the complaint as submitted by the Complainant is well founded.

In relation to the complaint regarding the Payment of Wages Act, 1991 I note that the Complainant had exhausted the sick pays scheme operated by the Respondent and was in receipt of income continuance from an insurance company.

I do not believe that there has been a breach of the Payment of Wages Act as submitted and therefore find that this complaint is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA – 00022685 – 001 – Complaint submitted under section 77 of the Employment Equality Act, 1998. I find the complaint to be well founded and order the Respondent to pay €12,500 compensation to the Complainant.

CA – 00022685 – 002 – Complaint submitted under Schedule 2 of the Protected Disclosures Act, 2014. I find the complaint to be well founded and order the Respondent to pay €12,500 compensation to the Complainant.

CA – 00022685 – 003 – Complaint submitted under the Payment of Wages Act, 1991. I find the complaint is not well founded.

Payment of compensation awards should be made within 42 days from the date of this decision.

Dated: 11.07.2019

Workplace Relations Commission Adjudication Officer: Jim Dolan

Key Words:

Employment Equality – Discrimination; Protected Disclosures Act – Penalisation.