Complainant

Respondent

Anonymised Parties

A Holistic Therapist

A Provider of Holistic Therapy

Complainant

Respondent

Representative

None

None

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00020443-002

09/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00020443-003

09/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00020443-005

09/07/2018

The complainant began working for the respondent on the 1st October 2008. She was paid €19 per hour and the schedule for 2017 showed that she worked on average 11.5 hours per week. The complainant asserts that there were contraventions of the TUPE Regulations following the transfer of undertaking on the 3rd July 2017. She asserts that there was discrimination on the disability ground and victimisation. The respondent asserts that the complainant was not an employee and not entitled to bring these complaints. It strongly denied the allegations of discrimination and victimisation.

In respect of the TUPE complaints, the complainant outlined that the transfer of undertaking took place on 3rd July 2017, but she was only notified of this on the 11th July 2017. She was not given the required 30 days’ notice of the transfer of undertaking. The transfer was incorporation from a trading name to a limited company.

The complainant said that she did not sign the contract after the transfer as there was a SCOPE investigation underway. SCOPE determined on the 26th April 2018 that she was in insurable employment.

The complainant outlined the meeting of the 17th October 2017 was called after the complainant obtained advice at a FLAC clinic; this advice was that she was employed and not self-employed. She met with the respondent, who was accompanied by a HR consultant. At the meeting, the complainant asked about becoming an employee. The respondent refused and also refused to re-negotiate the contract.

At the meeting, the respondent stated that therapists who were mobile (i.e. could drive) were to be given priority. This was the first time that any such priority would be given to mobile therapists. The respondent did not explain the reasoning for this decision. The complainant said that she could not drive because of epilepsy. The complainant mentioned this at the meeting and also that she needed some time off as she has Stage 4 endometriosis.

The meeting then turned to the terms of employment and the respondent offered a lower rate of pay. The complainant said that a new recruit in 2014 was paid €14 but the complainant was now being offered €13 per hour. The complainant said that she should retain the same rate of pay of €19 per hour.

After the meeting, the complainant was made offers of self-employment or employment with lower rates of pay and a sick pay provision (as set out in the HR consultant’s email of the 1st November 2017). The complainant replied that she would wait the outcome of the SCOPE investigation. She continued to work until her last shift on the 8th December 2018. She then took some time off on medical grounds as she could not risk attending a nursing home because of the risk of infection. She sought additional shifts on the 2nd January and the 4th 2018, but none was forthcoming. At this time, the respondent placed an advertisement looking for new staff despite saying to the complainant that there was no work.

The complainant said that she was victimised for sending the ES letter on the 14th December 2017. The last day she was offered work was on the 13th December 2017. In the document the complainant raised disability discrimination, asking for shifts near her and asked about the priority for mobile workers. She received the respondent’s reply of 10th January 2018. She said that she was victimised for sending the ES1 form and not then being offered work.

Since then, the complainant worked in a couple of places and also cared for her mum who was dying of cancer in 2018. The complainant said that this was the reason for the delay in sending the full information for the complaints to the Workplace Relations Commission.

In reply to the respondent, it was submitted that Revenue use the term ‘irregular employment’ but the Oireachtas committee is addressing ‘bogus self-employment’. Employment status is not a matter of choice but of legal criteria.

It was submitted that the respondent was informed in 2014 of the complainant’s disability because this was mentioned in a text message. It was submitted that every communication is ‘formal’, and this includes a text message. It was the respondent who determined who, where and when work was done. Before this, the complainant had worked every January. She was not offered work in the month of January after making the SCOPE application.

In respect of ‘reasonable cause’, the complainant said that she was in touch with the WRC in April and mentioned her mum’s health. She also referred to the SCOPE investigation. She was under the impression from the CIC website that there are two forms of discrimination, direct requiring a comparator and indirect, the other. She was not looking for a comparator, but the respondent referred to one. The complainant asked if she was still on the respondent’s books, why had she not been contacted for her availability since?

At the meeting of October 2017, the sister of the respondent director was asked to move back on two occasions and the complainant sat back because of her behaviour. The HR consultant took notes at the meeting but would not disclose them to her on GDPR grounds. This meeting was arranged after her emails and the complainant getting a draft contract. She told the respondent that it was not in her best interest to sign. The complainant wrote to say that she was already an employee. She had a good recollection of the October 2017 meeting so that while she did not take notes, she was able to set out what was said.

The complainant said that her two medical issues were discussed at the meeting. She referred to missing days because of endometriosis. They discussed her epilepsy and her inability to drive in the context of the respondent stating that priority would be given to therapists who drove. The complainant said that she even used the term ‘discrimination’.

The complainant said that the reference to sick leave and absenteeism in the 1st November offer was targeted to her conditions. Every time she missed work, it was because of sickness. She sought information via the WRC regarding other staff in reply to the respondent’s submissions regarding a comparator. The complainant asked that this information be compelled from the respondent.

The complainant outlined that nursing homes require a degree of continuity, for example for Garda vetting purposes. She was able to get to nursing home via public transport but also by being given lifts by the respondent to a nursing home.

The complainant said that the last time she was offered work was the 13th December 2017 and she looked for more work in the new year. Her colleagues received their hours on 2nd January 2018 and the complainant was told that she was not needed. She asked the respondent if the nursing homes she previously attended were being serviced by someone else. The respondent did not reply to this email. She then received the letter of the 10th January. The respondent placed the advertisement looking for new employees at the time they were telling their longest serving member they had no work.

The complainant outlined during her time with the respondent she did not accept work in three named areas as the travel took longer than the actual work. She did not work in a new nursing home, also some distance away.

The complainant said that she had worked in several nursing homes for some years and was suddenly no longer needed. She was never offered at one named nursing home accessible to her by public transport, despite suggesting this role. The respondent also did not change times with nursing homes to make it easier for her to travel.

Prior to the 17th October meeting, the complainant was presented with a contract with no alternative. She was given no choice but to sign. The meeting of the 17th October was to deal with the contract and the advice she had received. She had no negative motives. She declined to sign the contract because the SCOPE investigation was underway. The complainant said that the respondent acknowledged that she was an employee in the TUPE email as the Regulations only apply to employees.

The complainant outlined that there were two offers: one in 2014 and the second in 2017. The respondent told her that she should not seek work elsewhere. At the hotel meeting, the complainant said that she was being exploited as the respondent was taking most of the income. She then suggested that she get 75% as she had travelled and done the work. She said that there were hours in a nursing home in the chart not assigned to her. A previous employee of the respondent was paid €14 per hour for this work.

The complainant said that the presentation of the 2017 contract was the first time she had the chance to take the contract away to get advice. She accepted that she was gifted a client and had worked there for 8 years. She said that she was definitely self-employed there now, but she had previously invoiced the respondent. She accepted that the gift was a good thing and her only income (with one other client) post January 2018.

The complainant confirmed that she obtained the Back to Work Enterprise Allowance in 2009 and she had already started with the respondent in April 2009. It was submitted that this was the same as occurred in the Denny case: the nursing homes contacted the respondent who allocated therapists.

The complainant said that she mentioned to the respondent health issues over the course of her employment. She mentioned her depression in 2008, endometriosis in 2012 and epilepsy in 2014. The victimisation is not being offered work since sending the letter.

In respect to time and the TUPE complaints, the complainant was notified at outer limits of 12 months of the transfer since she was informed of this on 11th July 2017.

The respondent submitted that the complaints were statute barred as they were taken nine months from the date of contravention. There had been plenty of time within the six months to name a comparator. The respondent outlined that it took very seriously the accusation of discrimination and was very aggrieved and upset by the accusation. It described this as a personal tirade and vendetta by the complainant.

The respondent outlined that the complainant was never an employee regardless of what the SCOPE section had decided. It denied that there was a dismissal and said that the complainant remained on its panel of therapists. It said that there was no discrimination and it would never discriminate. The respondent stated that it was offended by the threat made by the complainant’s representative to publish details of the case.

The respondent said that the purpose of the meeting of the 17th October 2017 was to discuss a positive way forward and the HR consultant accompanied the respondent. The complainant’s representative attended the meeting and introduced himself as someone who knew about ‘bogus self-employment’. The respondent was accused of preserving the status quo of ‘bogus self-employment’. This set a negative tone for the meeting.

The respondent said that the meeting lasted 55 minutes and constituted harassment. The HR consultant said that he would draw up two options, as set out in the email of the 1st November 2017. One option was the continuation of self-employment and the second was becoming an employee. There were no minutes taken of the meeting and the complainant did not take notes. The respondent only had a health and safety policy. There was no policy of prioritising workers who drove. All work took place off site, for example in nursing homes. Everyone on the panel was mobile. The complainant took public transport. Mode of transport was one element in timetabling hours.

The respondent director said that endometriosis had no effect on being able to work except, for example, when surgery is needed. She outlined that everyone was afforded the same approach and the respondent took location into account to ensure that they could get to the site on time. They also looked qualification and experience. While hours were not guaranteed or set in stone, panel therapists tended to do the same clients.

The respondent said that at no point did epilepsy affect the complainant’s work. The respondent never knew details of her epilepsy. The respondent director said that she only became aware of this in a casual, friendly text in 2014 about learning to drive. The complainant said that she had a mild form of epilepsy. This was not discussed afterwards and had no impact until this SCOPE / WRC process. The complainant then raised the issue out of the blue as they were about to end the October 2017 meeting. Epilepsy was never a factor in allocating shifts and there was no request for reasonable accommodation.

While the complainant had not been able to attend several sessions, she never mentioned epilepsy. As they left the meeting room, the HR consultant said that the complainant using the word ‘epilepsy’ was an ambush. The respondent said that the complainant’s hours were not reduced after the meeting.

The respondent said that the Christmas period can be quiet, and the complainant was unwell at this time. As this was self-employment, the respondent did not request medical certs. There was no promise of hours and no SLA with clients, so there were no set out hours. The respondent director worked the complainant’s hours from December 2018 to May 2019. It accepted that it placed the advertisement, but it placed a generic ad twice a year to increase the panel of therapists.

The respondent said that the complainant was not replaced, and they needed to increase the size of the panel. The complainant asked for hours and the respondent replied that it would be in contact within 24 hours if there were hours. The respondent did not offer the complainant any hours as they were all covered by the respondent director. The respondent said that the complainant did not engage after that. There was a later data access request.

The respondent outlined it has one full time member of staff and everyone else is part-time. They read the ES1 letter on the 18th December and this was a day after the two-month notification period per the equal status legislation.

In reply, the respondent director said that it was shocked by the allegation of discrimination. This was an hour-long meeting and she had no recollection of saying anything about mobile therapists. She outlined that the complainant was allocated the most hours in 2017 and was paid the highest hourly rate.

The respondent outlined that the disability issue arose at the end of the meeting, but it thought that there was a different agenda at play. They had asked the complainant in October 2014 if she wanted to be an employee, but she chose to be self-employed. In February 2015, they had a friendly coffee in a local hotel and the complainant said that she was happy to sign something to say she was self-employed. The respondent’s accountant gave her this documentation. The complainant later sent threatening whatsapp messages regarding their prices to nurse homes. The respondent devised a new self-employment contract and she was allocated one nursing home as her own client. The complainant now billed this nursing home directly instead of invoicing the respondent.

The respondent outlined that the meeting of October 2017 was to plan the way forward. It was supposed to be informal and therefore not minuted. The respondent director took down observations of the meeting. The respondent submitted that the complainant availed of the back to enterprise allowance scheme between 2009 and 2011 so how can she now make a claim as an employee?

The respondent submitted there was no reasonable cause for the late submission of the complaints. The complainant first said she was late submitting the complaints to the WRC because she was waiting on SCOPE, but only later mentioned her mother’s illness. She knew in April that there was a time limit against her, as she referred to this in her email to the WRC.

The respondent presented a spreadsheet depicting the allocation of hours in 2017. They were like air traffic controllers managing hours, people and their skill sets. They allocated hours to the complainant that were accessible by public transport.

The respondent described giving the complainant her own nursing home as a gesture of good will. This was agreed in May 2016 and took place in October 2016, following a delay on the complainant’s side. This was the complainant’s first client and why would the respondent give an employee a client?

The respondent relied on Minister for Education and Science v A Worker EDA 087 to submit that the complainant must identify a comparator. The complainant must also show why or where preferential treatment occurred. It stated that the mobility issue would never affect doing the job.

The respondent submitted that it did not dismiss the complainant. It was the complainant who stopped looking for hours. There was no obligation to provide set hours and there were no hours available for the week she sought.

The respondent outlined that there was no need for reasonable accommodation of the complainant’s epilepsy as she could do the job without issue. There was no problem with her not driving. The respondent submitted that the victimisation claim must fail as the complainant was not dismissed and was never an employee. The respondent outlined that its business model changed in 2018 and, following this and the company’s expansion, it now had some direct employees.

The respondent outlined that the first time it saw the medical letter was in September 2018, amongst the documentation submitted to the WRC. It was never asked for such information in 2017 and disability never impacted her work. The respondent asked why the complainant would continue working for it if she believed what she had written in her submissions. The respondent ‘1,000%’ rejected the complainant’s allegations regarding their ‘horribleness and evil’.

In reply to the complainant, the respondent outlined that it was always open for the complainant to turn down work. This is the hallmark of self-employment. The complainant was offered work after the reference to SCOPE. The complainant had always been able to travel to sites. It outlined that the complainant had turned down two employment contracts. There was no discrimination as the complainant was offered work and could not do some locations as she was already working elsewhere. The respondent could not read minds and could not have discriminated when it had no knowledge of her disability. All jobs were accessible by public transport. Other therapists travelled much further. The complainant turned down becoming an employee and the respondent relied on advice.

The complainant did not tell the respondent of her mum’s health and did not check back regarding her availability. The respondent did not refuse to give the complainant a contract as it was their business model to use the panel therapists. They had already increased the complainant’s pay by 12% and gifted her a named nursing home.

The respondent said that the offer of €13 was not made at the 17th October meeting but made in the email of the 1st November. It refuted that this email made three references to sickness/disability. They are standard references in an employment contract. The respondent said that the other therapists were probably allocated hours by the 2nd January 2018. It said that the client dictates the times work is to be done and it cannot just swap out work on a continuous basis.

In respect of the nursing home mentioned by the complainant, the respondent said that this was work on a Thursday afternoon when the complainant already had a lucrative job elsewhere in the morning. It cited that this was an example of a direct clash in timetable.

The respondent stated that the TUPE letter referred both to employee and self-employee, and the TUPE Regulations cover all workers. The respondent outlined that the industry standard pay was €10.95 per hour, but it always offered €13 per hour. They paid the complainant the contractor rate of €19 per hour and this was always paid on time.

The respondent outlined that the complainant would cancel on the morning of a job, making it difficult to provide cover. No penalty was imposed on the complainant as there was no mutuality of obligation.

The respondent empathised with the complainant when she was suffering depression in 2015. They called her to make sure she was okay.

While there was dispute over the nature of the relationship between complainant and respondent, it is not disputed that this relationship began in 2008 and continued until late 2017 or early 2018. It is a significant feature of this case that the parties disputed whether this relationship was one of employee and employer. Also, to be addressed is the relevant date of contravention applicable to each complaint.

Interaction with SCOPE

The SCOPE process found that the complainant was in insurable employment during the currency of her relationship with the respondent (and its predecessor). It is a reality that employment law fora, Revenue and SCOPE must all determine the question of employment status according to their statutes, having regard to the case law of the superior courts.

In a case where those bodies provided diverging determinations, the High Court in National Museum of Ireland v Minister for Social Protection [2016] IEHC 135 held that decision-makers must explain why they diverge from a pre-existing determination on employment status. The Court held that a decision ‘based on largely the same factual circumstances and that decision must be at least of some persuasive authority such that one would expect the Appeals Officer and Deciding Officer to explain the basis on which they came to a conclusion in relation to the notice party’s employment status which differs from that of the Rights Commissioner.’ Relying on An Bord Pleanála v Mulholland [2006] 1 IR 153, the Court cited that the decision maker ‘must give its reasons and considerations in a way which not only explains why it has taken a different course but must do so in a cogent way so that an interested party can assess in a meaningful fashion whether or not the respondent’s decision is reasonably capable of challenge.’

Finding on the employment status question

I have read the decision of SCOPE in this case. I agree with its conclusion that on examining the complainant’s relationship with the respondent through the prism of the well-established tests, this relationship amounted to employment. However, not much actually turns on the employment status question. This is because I have found that the TUPE complaints are out-of-time or not well-founded. The finding of ‘employee’ does not have a significant impact on the Employment Equality complaint, as this Act has a broader ambit than ‘employee’ and specifically includes contractors. Even if one thought that the complainant was not an employee, she was certainly providing work or a service for another (as detailed below).

Time limits

The complainant made complaints pursuant to statutes which have in common that the date of complaint must be within six months of the relevant date of contravention. When this date is depends on the facts and the nature of the statute. Common to all statutes is that the six-month limitation period is extendable to 12 months, with reasonable cause.

Did the employment relationship end?

The complainant withdrew her unfair dismissal claim and has a claim of dismissal for opposing discrimination. The complainant asserts that she was no longer offered work by the respondent. She cites the 7th January 2018 as the date of dismissal. On the other hand, the respondent denies that the complainant was dismissed and that she remains on the panel of therapists (although has not worked since late 2017).

While there may be little prospect of the complainant and respondent actually working together again, I accept the respondent’s contention that there was no dismissal. The respondent did not dismiss the complainant and the complainant did not resign; instead, she looked for work from the respondent. I, therefore, formally find that there is no dismissal in this case.

CA-00020443-002

This is a complaint pursuant to the TUPE Regulations regarding the failure of the transferor to consult with the complainant in advance of the transfer. The transfer took place on the 3rd July 2017 and the complainant was informed of this on the 11th July 2017.

Regulation 8 of the TUPE Regulations provide that the transferee must inform and consult with employees not later than 30 days before the proposed transfer. The obligation to inform or consult arises before the transfer; the latest date of contravention is, therefore, the date of the transfer.

In this case, the transfer occurred on the 3rd July 2017 and the complaint was lodged on the 9th July 2018. This is beyond the six-month limitation period provided in section 41(6) of the Workplace Relations Act. I find that the complainant has not established reasonable cause in the late submission of the complaint. While I appreciate, she was dealing with her mother’s ill-health and subsequent death in the first half of 2018, I also note she interacted with the WRC in April 2018 and also participated in the SCOPE process.

I find that the complaint is not well-founded as it was not made within six months of the date of contravention and the complainant has not shown reasonable cause for the late submission of the complaint.

CA-00020443-003

This is a duplicate complaint where the complainant asserts that the transferor did not consult with her on the transfer of undertaking. For the same reason as in CA-00020443-002, I find that the complaint is not well-founded as it was not made within six months of the date of contravention and the complainant has not shown reasonable cause for the late submission of the complaint.

CA-00020443-005

This is a complaint pursuant to the TUPE Regulations regarding the failure of the transferor to advise the complainant of the transfer of undertaking.

I find that the complaint was made out-of-time as the latest date of contravention was the 3rd 2017. The complaint was lodged on the 9th July 2018, in excess of the six-month limitation period. I find that the complainant has not established reasonable cause for the late submission of the complaint.

CA-00020443-002

I decide that the complaint pursuant to the European Communities (Protection of Employees on Transfer of Undertaking) Regulations against the transferor is not well-founded as it was not made within six months of the date of contravention and the complainant has not shown reasonable cause for the late submission of the complaint.

CA-00020443-003

I decide that the complaint pursuant to the European Communities (Protection of Employees on Transfer of Undertaking) Regulations against the transferor is not well-founded as it was not made within six months of the date of contravention and the complainant has not shown reasonable cause for the late submission of the complaint.

CA-00020443-005

I decide that the complaint pursuant to the European Communities (Protection of Employees on Transfer of Undertaking) Regulations against the transferor is not well-founded as it was not made within six months of the date of contravention and the complainant has not shown reasonable cause for the late submission of the complaint.

TUPE Regulations / date of contravention / limitation period