Complainant

Respondent

Anonymised Parties

A Public Servant

A Public Service Body

Representatives

Michael Hegarty, Reddy Charlton Solicitors

Des Ryan B.L. instructed by the Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00028610-001

22/05/2019

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

CA-00028610-002

22/05/2019

The complainant has been employed by the respondent since 2005 and holds a middle management position.

On September 19th, 2018 a co-worker (who she supervised) moved his work station near to that of the complainant on her day off and without any consultation with her. She mentioned this to him the following day on her return.

On September 21st he moved again so she met him to establish why he had moved twice in one week. He did not reply and became very angry, aggressive and defiant. He shouted into her face.

The complainant was shocked and sought to calm him, pointing out that as his manager she was entitled to ask why he was moving desks. He then became more aggressive and made a threat of physical violence against the complainant at which point she sought the intervention of a senior manager who eventually managed to calm him.

However, when asked to leave the office he refused.

The complainant met the senior management team in her area and expressed concerns for her safety and she understood that her assailant was to be sent home. In the event, he remained at work and continued to be hostile and place the complainant in fear for her safety.

It is also relevant that not only was the complainant pregnant, but she had a medical history of difficulty in pregnancy, including having had a number of miscarriages. This compounded her concern for her safety.

She was then shocked at the failure of the respondent to create a safe working environment for her and especially failing to move her assailant but instead inviting her to move work location.

Shortly after the events her medical consultant placed her on sick leave.

The issue of penalisation arises from the failure of the respondent to apply a special sick leave arrangement to the complainant which would have extended her basic entitlements to paid sick leave and prevented her losing her entitlement to payment for any future sick leave.

The respondent has such a scheme for certain type of occupational injuries incurred in the line of its work, and which the complainant says ought to extend to her on the basis of the events described.

This same set of facts grounds the discrimination complaint which has been made on the grounds of her gender, family status and disability.

The respondent says that there is no merit in either complaint. It also submits that the complaints have not been made within the statutory time limits.

A number of the incidents referred to by the complainant occurred on either September 21st, 2018 (the assault by the co-worker) or October 2nd, 2018 either of which is greater than six months before the date of the lodgement of the complaint in May 2019.

The respondent takes no issue with the allegations of disruptive behaviour by the complainant’s co-worker

It was fully investigated and processed through its disciplinary procedure resulting in a finding of misconduct against the person in question and an appropriate sanction. The respondent fully supported the complainant throughout the incident and its aftermath.

In respect of the claim by the complainant that she should have been a beneficiary of the special injury at work provisions this requires medical certification and then a decision by a senior manager.

The complainant had a consultation with the Chief Medical Officer on January 28th, 2019 and he concluded that there was no causal link between the incident and the complainant’s sick leave.

This is a professional medical opinion and therefore could not be considered to be an act of penalisation or discrimination.

In fact, the concern expressed by the complainant that she might exhaust her normal paid sick leave entitlement did not materialise and she was at no loss except in relation to some allowances. However, she was at no serious detriment and was on full pay for the period of her absence.

There is an impermissible overlap between the two complaints of penalisation and discrimination, and both are couched in almost identical terms and this is in breach of the rule in Henderson v Henderson (1843) Hare 100 which prohibits the duplication of claims on public policy grounds.

In any event, the complainant has not established any detriment that resulted of the protected act of making a safety, health and welfare at work complaint. Specifically, she cannot meet the ‘but for’ test set out by the Labour Court in O’Neill v Toni & Guy Blackrock Ltd [2010] ELR 1 which required as follows;

‘Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the complainant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that ‘but for’ the complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive which influenced the decision maker in imposing the impugned [detriment].

Similarly, there is no basis for the complaint under the Employment Equality Acts. In fact, the complainant has not established a prima facie case that she was treated less favourably than another person in comparable circumstances on any of the discriminatory grounds.

The complainant has not adduced any evidence to support either of her complaints and they should be rejected.

The facts of the matter are well set out above in the submissions of the parties and the key elements of the narrative giving rise to the complaint are not in dispute.

The complainant was the victim of extremely unpleasant conduct at the hands of a co-worker, compounded by the fact that she was pregnant at the time and further aggravated by her having a history of difficult pregnancies.

That co-worker was subsequently the subject of workplace disciplinary proceedings.

The events resulted in a period of sick leave for the complainant.

Without any question, this was a traumatic and unacceptable experience for the complainant, and one that no worker should have to endure. It is not hard to understand the complainant’s sense of grievance arising from this experience.

But the specific issues that arise for the purposes of this complaint relate to alleged breaches of the Employment Equality Acts (discrimination on the gender, family status and disability grounds) and under the Health, Safety and Welfare at Work Act, 2005 (penalisation).

The complainant states the date of the most recent breach of the Equality Act as April 23rd, 2019.

The act of penalisation relates to the failure of the respondent to apply a special sick leave arrangement to the complainant which would have extended her basic entitlements to paid sick leave. The respondent has such a scheme for certain type of occupational injuries incurred in the line of its work, and the complainant says she meets the qualifying criteria on the basis of the incident with her co-worker.

As the respondent correctly submitted, in order to succeed with a complaint of penalisation a person must meet the twin tests of having suffered a detriment and that the detriment suffered was a result of having made the complaint.

The detriment claimed by the complainant; her loss of sick leave benefit as a result of exhausting her entitlement under the scheme did not actually arise; she remained entitled to full benefit and it appears that as she is now in a new cycle for the purposes of calculating her entitlements, she will not face such a detriment.

A bizarre, and inexcusable feature of the case is that the respondent has actually yet to make a formal decision on her entitlement to the special sick pay regime, although that seems academic now.

But whatever way you look at it she has not made out a prima facie case on this point if she cannot point to any detriment, leaving aside the question as to whether it was caused by her making a complaint. (While it is not necessary to do so, I find there is no connection between the events that meets the ‘but for’ test set out by the Labour Court in O’Neill v Toni & Guy Blackrock Ltd [2010] ELR 1.)

In relation to the complaint under the Equality Acts it is hard to discern what it is.

In his presentation to the hearing the solicitor confirmed that the complainant’s real grievance related to the denial of her entitlement to the special rate of sick pay.

Leaving aside the fact that a formal decision from the respondent management is still awaited on this and noting that the CMO opinion on her claim post-dated the referral of the complaint to the WRC, there is no sign of any discriminatory factor in either the delay, which is inexcusable or in respect of whether the terms of the scheme make it applicable to the complainant. It is extraordinarily incompetent, but not discriminatory.

Accordingly, even the very low level of facts necessary to enable an inference of discrimination are nowhere to be seen.

Finally, and critically I accept the respondent’s submission that the complaints have not been made within the statutory time limits. The complainant identified April 23rd, 2019 as the most recent date of discrimination, but no evidence was offered to identify any alleged act of discrimination which occurred on that date.

Accordingly, for all of these reasons set out I find that neither complaint is well-founded.

For the reasons set out above I find complaints CA-00028601-001 and 002 not to be well-founded.

Time limits, equality