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-00020443-001

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-00020443-004

09/07/2018

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

CA-00020443-006

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-00020443-001

This is a complaint pursuant to the TUPE Regulations that the new employer (the transferee) did not respect the terms of employment transferred from the previous employment. The transfer of undertaking took place on the 3rd July 2017 on the incorporation of the respondent; the complainant’s relationship changed from being with the respondent director trading as an entity to being with the respondent company.

Regulation 3 of the TUPE Regulations provides that the ‘rights and obligations arising from a contract of employment existing on the date of a transfer’ transfer from transferor to transferee. A contravention of the Regulations shall be made via Regulation 10 within six months of the date of the contravention.

The relevant date of contravention is whatever date the rights and obligations which transferred over ceased to be respected, as opposed to the date of the transfer. The Directive allows that ‘Member States may limit the period for observing such terms and conditions with the proviso that it shall not be less than one year.’ No such temporal limitation is included in the transposing Irish legislation.

The complainant asserted that the changes to her terms and conditions of employment where the removal of her hours in early 2018 and the negotiation of a new contract with a lower rate of pay. I find, as a matter of contract, the complainant did not have a guaranteed set of hours (this predates the banded hours regime). I also find that while there was negotiation of a lower rate of pay, this did not come into effect (so there was no change). While the complainant was not offered hours in 2018, I find that that this does not amount of a change of a term of employment as there was no term of guaranteed hours. I, therefore, conclude that the complaint is not well-founded.

CA-00020443-004

This is a complaint pursuant to the TUPE Regulations regarding the failure of the transferee to advise the complainant of the transfer. This is an alleged contravention of Regulation 8 and the obligation of the transferee to inform or consult with the employee or to put in place a procedure to select employee representatives.

The latest date of contravention is the date of the transfer and the employee has six months to lodge a complaint. The latest date of contravention in this case was either the 3rd July 2017; the complaint not referred until the 9th July 2018. This is far in excess of the six-month limitation period. I find that the complainant has not shown reasonable cause to allow the late submission of the complaint. Notwithstanding her personal circumstances, the complainant engaged with the WRC and SCOPE at this time.

CA-00020443-006

This a complaint pursuant to the Employment Equality Act, citing discrimination on grounds of disability, victimisation, dismissal for opposing discrimination and harassment.

Scope of the Employment Equality Act

The Employment Equality Act has a broader remit than most employment statutes. It covers both employees and those who agree to personally execute any work or service for another.

Section 2 provides:

‘contract of employment ’ means, subject to subsection (3) — (a) a contract of service or apprenticeship, or (b) any other contract whereby — (i) an individual agrees with another person personally to execute any work or service for that person, or (ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract), whether the contract is express or implied and, if express, whether oral or written’

Section 2, subsection (3) provides:

‘(d) in the case of a contract mentioned in paragraph (b)(i) of the definition of ‘contract of employment’ — (i) references in this Act to an employee shall be construed as references to the party to the contract who agrees personally to execute the work or service concerned and references to an employer as references to the person for whom it is to be executed, (ii) any comparisons to be made for any of those purposes shall be between persons personally executing work or service for the same person or an associated person under such a contract or contracts, and (iii) in particular, and without prejudice to the generality of the foregoing, references in sections 19(4)(a) and 22(1)(a) to employees shall be construed as references to those persons.’

It is clear that the complainant was someone executing work or a service for another. She was provided with an ‘Independent Contractor Agreement’. She attended nursing homes on behalf of the respondent and worked according to obligations imposed by the respondent. She invoiced the respondent for her hours. The parties could clearly distinguish between the complainant’s work with the respondent from her role in the nursing home ‘gifted’ to the complainant.

I find that the complainant comes within the ambit of the Employment Equality Act and I have jurisdiction to decide the complaint.

Burden of proof

Section 85A of the Employment Equality Act requires the complainant to establish facts of such significance that raise a prima facie inference of discrimination. Once the complainant has done this, it falls on the respondent to rebut the inference of discrimination.

Disability

It was not disputed that the complainant has a disability within the ambit of the Employment Equality Act. It was accepted that the complainant had depression in the past. She has endometriosis and epilepsy, meaning she cannot drive and could not readily access all the nursing homes.

Discrimination on grounds of disability / reasonable accommodation

I find that the complainant has not established a prima facie case of discrimination on grounds of disability, including a failure to provide reasonable accommodation. There was a conflict in evidence whether the respondent was to prioritise work to therapists who drive. Even if I accept that this proposal was made, it was not put into effect in late 2017. The complainant continued to receive hours until she stopped working in December 2017 on health grounds. I find that not restoring the complainant’s hours in 2018 was not an act of discrimination (although I find below it was an act of victimisation). It was not discrimination because it was not less favourable treatment on grounds of her disability. There was no failure to provide reasonable accommodation as the complainant retained her hours in 2017 and lost them altogether in 2018. Had, for example, the respondent changed the complainant’s nursing homes to ones where she could not access as a non-driver, this would have been discrimination.

Harassment

There were certainly difficult interactions between the complainant and the respondent, as well as their respective representatives, for example at the meeting of the 11th October 2017. Harassment is defined in section 14A of the Employment Equality Act as any form of unwanted conduct related to any of the discriminatory grounds' and being conduct that has the effect of 'violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person'.

Taking the complainant’s evidence at its height, it cannot be said that the interactions with the respondent violated her dignity or where hostile, degrading or humiliating. I find that this element of the complaint does not succeed.

Dismissal

As set out above, I find that the complainant was not dismissed and did not resign. The respondent ceased providing her with work, but, as the respondent submits, the complainant remains on the panel of therapists. This element of the complaint does not succeed.

Victimisation

As set out above, it is for the complainant to set out primary facts from which an inference of victimisation can be made. Section 85A(4)(b) specifies that victimisation falls within the rubric of ‘discrimination’ in that section. A claim of victimisation does not relate to the substance of the discrimination complaint but provides protection to the employee who says that there has been a contravention of the Employment Equality Act.

Section 74(2) defines ‘victimisation’:

‘For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by her employer occurs as a reaction to — (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant, (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.’

In Department of Defence v Barrett (EDA 1017), the Labour Court held as follows in respect of victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment” That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: 1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act), 2. The Complainant was subjected to adverse treatment by the Respondent, and, 3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

The parties differed as to the extent disability was discussed at the meeting of the 11th October 2017. It is clear, however, from an earlier text conversation that the respondent knew that the complainant could not drive because of her epilepsy. The complainant wrote to the respondent on the 10th December 2017, asserting that she had been discriminated against on grounds of disability. She refers to the right to seek redress under the Equal Status Act. The respondent replied on the 10th January 2018 to strongly refute the claims and to state that they were shocked by them.

It is clear that the complainant made a protected act within the ambit of section 74(2). She complained of discrimination (subsection a) and gave notice of her intention to take proceedings (subsections b and g). The respondent responded to reject the allegations. What is striking about this case is that just as the complainant asserted discrimination and this was rejected by the respondent, the complainant’s hours dried up. She sought to return to work in January 2018 and was told that there were no hours available. The respondent was explicit that it would contact the complainant within 24 hours of work. The complainant went from being the busiest therapist to having no hours at all. The work was still there to do; it was done by the respondent director. The respondent advertised for additional therapists and referred in evidence to its expansion. The complainant referred to specific nursing homes accessible on public transport which were not offered to her. This all begs the question: why was the complainant not assigned work when there was work to do?

Applying Barrett, the complainant clearly made a protected act. She incurred adverse treatment in not being restored hours of work and losing them altogether. I find that the removal of hours was in reaction to the complaint of discrimination and the reference to proceedings. I reach this finding for the following reasons. First, the complainant was not restored hours some short weeks after her letter was received by the respondent on the 18th December 2017. The complainant sent the letter and the next thing that happened was that she was not assigned hours. Second, I note that the respondent was clearly not happy with the allegation of discrimination; it refers to ‘aggressively refuting’ the allegation. Third, the respondent never approached the complainant with hours at any time in 2018. Even if a particular month was slow or shifts were given to someone else to build them up on the panel, one would expect that some hours to be given to such a longstanding and established therapist as the complainant.

Taken together, I find that the respondent ceased providing hours to the complainant in reaction to raising discrimination and notifying the respondent of taking a complaint. I find that the complainant has established a prima facie case of victimisation, which the respondent has not rebutted the inference of victimisation.

In respect of the time issue, the complaint was referred to the Workplace Relations Commission on the 9th July 2018. As found above and as submitted by the respondent, the complainant remained an employee. The complaint of victimisation, therefore, relates to the adverse treatment incurred by the complainant throughout the cognisable period (6 months prior to the 9th July 2018) when she was on the respondent’s panel but not assigned work. The adverse treatment occurred within the cognisable period and the complaint is, therefore, within time.

In respect of the comparator issue, I agree that a comparator is required in an equal pay claim. It is not mandatory in other claims, although the complainant must show less favourable treatment. I note the case cited by the respondent: Minister for Education and Science v A Worker EDA 087. Here, the Labour Court criticised the choice of comparator. The claimant was a teacher in receipt of full pay while on sick leave; she sought payment of an additional supervisory allowance. The Labour Court held that the choice of comparator was inappropriate as the claimant could not be certified as having done the supervisory work. I have found that the complainant in the instant case has established that she incurred adverse treatment for making a protected act.

In respect of redress, I note that redress must be ‘effective, dissuasive and proportionate’. I note that the complainant challenged a proposed change in how work would be allocated on grounds of her disability. She referred to this as discrimination and to taking a case. While her hours were maintained in 2017, they were reduced to nil in 2018. This was adverse treatment. A complainant must be able to raise a complaint of discrimination without fear that they will incur adverse treatment; in this case, the complainant lost all her hours. The terms of her contract were ‘if and when’ the respondent required her service; the complainant was in a precarious position. The complainant’s evidence was that she relied on income from one nursing home (gifted to her by the respondent) and built up elsewhere. The complainant lost out financially, but I appreciate that the respondent is a growing business, dependent on work from medical settings in what is now a difficult environment. I note that redress must be dissuasive – it must discourage a repetition of the adverse treatment. Even if one wholeheartedly disagreed with the allegation of discrimination, this was not reasoned to end the complainant’s hours. Taking account of these factors, I award redress of €7,000.

CA-00020443-001

I decide that this complaint pursuant to the European Communities (Protection of Employees on Transfer of Undertaking) Regulations against the transferee is not well-founded.

CA-00020443-004

I decide that the complaint pursuant to the European Communities (Protection of Employees on Transfer of Undertaking) Regulations against the transferee 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-00020443-006

I decide that the complainant has not established a prima facie case of discrimination on grounds of disability, a failure to provide reasonable accommodation, harassment or dismissal. I decide that the complainant has established a prima facie case of discrimination as victimisation and the respondent has not rebutted the inference of discrimination as victimisation; I award redress of €7,000.

TUPE Regulations / terms transferring over / date of contravention

Employment Equality Act / Scope of statute / Victimisation