ADJ-00020545

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00020545

Parties:

	Complainant	Respondent
Anonymised Parties	An IT Systems Support Officer	A Hospital

Representatives

Aisling McDevitt, IBEC

Complaint:

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-00027067-001	14/03/2019

Date of Adjudication Hearing: 14/08/2019

Workplace Relations Commission Adjudication Officer: Catherine Byrne

Procedure:

Between February 6^th and June 10^th 2019, this complainant submitted six complaints to the WRC under various pieces of legislation. In accordance with Section 41 of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Acts 1998 – 2015 and Section 13 of the Industrial Relations Acts 1969, these complaints and disputes were assigned to me by the Director General. From a scheduling perspective, the complainant agreed that all six complaints could be dealt with together, but she requested that her complaints under the Employment Equality Acts be considered first. On August 14^th 2019, I heard submissions from the complainant and the respondent in relation to the complaints of discrimination. The grievances under the Industrial Relations Act were considered on September 23^rd 2019.

On the forms she submitted to the WRC, the complainant did not indicate that she would be represented at the hearing of her complaints. On one form, she said that it is very difficult for her to write about her complaint without getting distracted. On another, she referred to the fact that in 2015, she was absent from work due to stress and in 2019, she was absent again because of stress. She said that she has a difficulty hearing, particularly when people talk over her.

Considering these challenges, and, because of the complexity and number of complaints, in advance of the first hearing, I instructed the case officer to write to the complainant to encourage her to bring someone with her who has experience of attending hearings at the WRC, or who is familiar with industrial relations and employment law. In his letter, the case officer explained to the complainant that the hearings will involve her being cross-examined by the IBEC executive representing the hospital, and she will have the opportunity to cross-examine their witnesses. The complainant was advised that she could be accompanied by a relative or a friend, or both; however, to help the process to run as smoothly as possible, and to give her the best chance to make her case effectively, she was advised to be represented by a trade union official, a solicitor or someone from her local Citizens Information Centre.

On August 14^th 2019, the complainant attended the hearing without representation. At the opening of proceedings, I asked her to re-consider her decision, but she said that she didn’t want to be represented because it would take too long to explain her case to someone. I am satisfied that, while she could have been represented at the hearing, the complainant chose not to be. I regret her decision in this regard because she was disorganised and there was no chronological order in the way she presented her complaints.

The hospital’s Human Resources Manager and the complainant’s line manager, who is the Manager of the Clinical Activity Reporting Unit attended the hearing and gave evidence. They were represented by Ms Aisling McDevitt of IBEC. Ms Sinéad O’Connor from the WRC Secretariat attended the hearing to ensure that the proceedings were manageable for the complainant.

The subject of this decision is the complainant’s third complaint, submitted on March 14^th 2019. At the hearing, the complainant informed me that she was absent due to illness from the middle of January 2019 and, on May 20^th, she was compulsorily retired because of incapacity. She is entitled to an early pension on the grounds of ill health.

In complaints under the Employment Equality Acts, parties are generally named in the published decisions. However, due to the sensitivity of the medical information revealed at the hearing of this complaint, I have decided that the decision should be anonymised.

Background:

The complainant commenced employment in the hospital in March 2003. By the time of her retirement in May 2019, she was in a Grade V role of “Data Informatics and Reporting Officer” and she reported to the Manager of the Clinical Activity Reporting Unit (“CARU”). In her job description, her role is described as “report-writing, data extraction and statistical compiling throughout the hospital to inform business intelligence as required by the Clinical Activity Reporting Unit”. The complainant said that her job involved the maintenance of data quality, data governance and checking, the extraction of data for reports, staff training, answering telephone queries, drawing up organisation charts and attendance at project meetings and teleconferences. At the hearing, the CARU Manager said that the complainant had considerable expertise in IT systems and data management.

Outline Chronology

In 2014, the complainant was working in the Patient Services Department and, around the time of an IT systems upgrade, she said had several grievances related to her job. She said these grievances involved her requesting “tools to do the job that I had been assigned” and “requests for processes as to how things were done.” Following a meeting with her Department Head and the HR Manager, she got a letter confirming that “improved work flows would be worked on,” but, she said that this didn’t happen.

In August 2015, the complainant said that she was sent home from work. She said that she remained absent until January 2016 because of workplace stress. An advertisement was posted for a temporary Systems Officer to cover her role during her absence. The person who got the temporary job was the brother of her line manager at the time and the complainant alleged that he got the job as a result of canvassing. When she returned to work, the complainant was concerned at the access he had been given to the e-mail account for the job and to various IT systems.

The complainant said that between 2014 and 2017, her post was “split and splintered by the introduction of various new posts.” She said that one job was to communicate with and to represent senior management and this was assigned to a person at a higher grade than her. The second job was to improve communications about processes and this was given to a less senior manager. The complainant said that there was no improvement in her work processes because, in March 2016, her manager told her not to contact the person in the process role. The complainant said that she submitted a formal grievance about this on three occasions, but she got no response.

In April 2016, the complainant was moved to report to the manager of the Clinical Activity Reporting Unit, while still carrying out some work for the Patient Services Unit.

In February 2017, the complainant said that, following a meeting between two departments, her former line manager, the Head of Patient Services, made a complaint about her. She made a counter-claim about her manager and about her working conditions, which, she claimed were very difficult. An investigation was carried out by an independent consultant, but the complainant said that her own complaints were not considered. She believes that the manager who complained about her counselled two witnesses about the evidence they gave to the investigator. In her submission she said, “the Investigation Findings were that I was found to be of a bullying behaviour, albeit unintentional.” The complainant appealed against this outcome; however, the hospital did not accept her appeal because it was submitted too late. A disciplinary investigation arising from the findings of this report resulted in the complainant being issued with a written warning on January 18^th 2018.

At the hearing of her grievances on September 23^rd 2019, the complainant said that she did not consent to me reading the report of the independent consultant which was submitted in evidence by the hospital and I returned the document to Ms McDevitt.

In July 2018, the complainant said that she was listening to the radio at work and she heard a feature about the new General Data Protection Regulations. She said that she thought that using the Regulations might be one way of getting her issues resolved. On one day, she sent 33 e-mails to the HR Manager, requesting specific information and a designated reference number for each item, to assist her “to raise the issues with the Data Protection Office in relation to the fair processing of data about me.” In August, the complainant sent a 50-page submission to a consultant gynaecologist / obstetrician at the hospital by way of an appeal against the disciplinary warning of January 2018. These communications and what were referred to as “the excessive number of complaints / grievances / correspondence you have been sending to senior management since January 2018” resulted in a second disciplinary investigation. On October 18^th 2018, the complainant was issued with a final written warning. Her appeal against this warning was rejected.

In December 2018, the complainant said that scaffolding was erected on a building beside the office in the hospital where she worked. An e-mail she sent to the HR Manager on January 3^rd 2019 informed him that “the scaffolding was erected over two days with constant noise, banging and shouting prior to December 8^th 2018.” She said that the noise of the scaffolding being erected affected her ears and she couldn’t hear properly.

The complainant said that she told her manager about the noise, but the manager didn’t check the noise level or ask anyone else to do so. The manager didn’t tell the complainant how long the noise would continue for. The complainant said that this is a breach of section 8(2)(d) of the Safety, Health and Welfare at Work Act 2005.

In her submission, the complainant said that she can’t remember the dates on which the noise from the erection of the scaffolding occurred and that she was on holidays from December 7^th. When she was on holidays, she said that she went to her doctor because her ears were sore. She attributed this soreness to the noise from the scaffolding over several days. Her doctor referred her for an appointment with an ear, nose and throat specialist. By the date of this hearing, on August 14^th 2019, an appointment had not been arranged.

On December 19^th, the complainant refused to attend a meeting with her manager unless she had a colleague present as a witness. The manager said that the meeting was about an operational issue and not a human resources issue and she told the complainant that a witness was not required at such a meeting. The complainant said that she needed a witness because she couldn’t hear, because of the effect of the noise of the scaffolding on her ears. The meeting went ahead with a witness. The complainant said that she had a plaster on one ear “to muffle the noise.”

On January 3^rd 2019, the manager again asked the complainant to attend a meeting and she said that she wanted a witness with her because she couldn’t hear properly. The complainant said that she felt that her manager was asking her to work “in an unsafe way because I could mishear her and make a mistake.” In response to the complainant insisting on having a witness present at a meeting on January 3^rd, the complainant said that her manager said that she would have to escalate the matter to the HR Department. The complainant said that, in her view, her manager should have completed an incident form.

Later on January 3^rd, the complainant got a letter inviting her to a disciplinary meeting scheduled for January 4^th. She said that she was very stressed about the events of that day and she went to her doctor. She didn’t attend work on January 4^th and she was on sick leave until January 14^th. At 10.30am on the 14^th, she attended a meeting with the HR Manager who asked the complainant to re-consider her decision not to attend meetings with her manager without a witness present. She insisted that she wanted a witness at any meeting with her manager. The HR Manager asked the complainant to consider her decision again and he arranged to meet her later in the day. Following a second meeting at 3.00pm on January 14^th, the complainant was suspended.

Retirement Due to Incapacity

In the complaint form she submitted on February 6^th 2019, the complainant said, “I am currently on sick leave for stress.” On the form she completed on March 14^th 2019 in relation to this complaint, she said that she went to her doctor and told him that “I couldn’t cope with things and that I wasn’t well at all and that I had just returned from sick leave suffering from stress and anxiety and that I was now feeling worse.” On August 14th, at the WRC, the complainant said that she had suffered an injury at work and she consulted a psychiatrist. At some point during her absence, she was examined by the hospital’s occupational health physician. Following a discussion by telephone with her consultant, the occupational health physician wrote a report in which he concluded that that the complainant is permanently incapable of carrying out her duties at work and he recommended that she would be permitted to retire on medical grounds.

Summary of Complainant’s Case:

The complainant claims that, contrary to section 6 of the Employment Equality Acts 1998 – 2015 (“the Act”), by seeking to impose a disciplinary sanction, her employer has discriminated against her on the grounds of disability.

On December 19^th 2018, she said that her manager was in breach of an organisational policy when she failed to complete an incident form and did not arrange a back to work meeting with her following her return from her holidays during which she consulted her doctor about her sore ears.

On the same day, she said that her manager breached health and safety legislation by not moving her to a safe place to work.

On December 19^th 2018 and January 3^rd 2019, the complainant said that her manager failed to understand or take action regarding her hearing disability by not allowing her to have a witness at meetings and that this caused her to suffer from stress and anxiety because she couldn’t explain or assert her rights clearly.

At the meeting at 3.00pm on January 14^th, the complainant said that her right to privacy was breached when the witness that attended the meeting with her was informed of what she described as “confidential and private earlier meetings.”

Summary of Respondent’s Case:

From April 2016, the complainant reported to the manager of the CARU. In her evidence, the manager said that the erection of the scaffolding on the adjacent building was completed at the end of November. On December 19^th, she asked the complainant to come to her office to discuss reports that were being moved to the Patient Services Unit and the complainant asked if a named colleague could attend with her. The CARU Manager said that, as the reports also affected the colleague, she had no problem with this. She said that she noticed that the complainant had a plaster over one ear. The complainant said that this was because of the scaffolding. The Manager asked the complainant if she would like to go home or, if she would like to attend the occupational health consultant, but she declined, saying that she had been to her doctor and that she was fine.

On January 3^rd, the CARU Manager said that she needed to speak to the complainant and she went to her office. The complainant was the only one present and when her manager asked to speak to her, she said, “I’m not dealing with you” and ran out of the office. The CARU Manager said that she sent the complainant an e-mail and said that it wasn’t possible to have a witness at every meeting and that, as the complainant was on a final written warning, the situation was serious.

For the hospital, Ms McDevitt said that the decision to suspend the complainant on January 14^th was in response to a conduct issue and was in accordance with the hospital’s disciplinary policy. The suspension had no connection with a disability. The complainant was asked to attend a meeting with her manager about a work-related issue and she refused to do so unless a colleague attended with her. She submitted no evidence of a hearing impairment or a problem with her ears.

In relation to the requirement to show that she has been treated less favourably than a comparator, Ms McDevitt said that the complainant has failed to show that she was treated less favourably than someone who is not disabled.

Findings and Conclusions:

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

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

The effect of this section in the law is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she was treated less favourably than someone in her workplace who did not have a disability, or, who had a different disability than her.

Referring to the onerousness of the burden of proof in the Employment Equality Act, in the case of Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, the Labour Court found:

“This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The evidence of the complainant’s manager at the hearing of this complaint is that the erection of the scaffolding finished at the end of November. The complainant said that it went on for two days and that it was completed before she went on holidays on December 7^th.

If the noise levels in the office had been so loud as to have the potential to cause hearing damage, some other staff members would have informed the Health and Safety Officer. The complainant did not bring the problem to the attention of the Health and Safety Officer either and she did not fill in an incident report, although she claims that her manager should have done so.

In December 2018, if the complainant had sore ears, she could simply have told her manager that she wasn’t hearing too well so that the manager could check that the complainant heard and understood what she said.

The complainant brought no evidence to the hearing to show that she had a hearing impairment in December 2018 / January 2019.

On August 14^th 2019, at the hearing of this complaint, the complainant said that she had no problem hearing. I am satisfied that she hadn’t got a hearing problem on December 19^th 2018 or on January 3^rd 2019, when her manager asked to meet her.

The complainant has not demonstrated that she has a hearing-related disability and I find that the decision to suspend her from work on January 14^th 2019 was unrelated to her claim that she had such a disability. I am satisfied that the complainant was suspended because she refused to carry out a reasonable instruction of her manager.

Conclusion

In respect of this complaint of discrimination, it is my view that the facts are not adequate for me to presume that discrimination has taken place. As set out by the Labour Court in the Valpeters case, these facts “must be established as facts on credible evidence.” No medical evidence of any significance was submitted by the complainant to show that she suffered from a hearing ailment. For this reason, it is my view that the complainant has failed to establish facts to show that she was suffering from a disability. It follows therefore, that the onus of proving that discrimination has occurred does not shift to the respondent.

Decision:

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.

I have concluded that the complainant has failed to discharge the burden of proof which requires her to establish the primary facts that can be relied upon to establish a complaint of discrimination. Based on this conclusion, I have decided that her complaint fails.

Dated: September 30^th 2019

Workplace Relations Commission Adjudication Officer: Catherine Byrne

Key Words:

Discrimination, hearing problem