Complainant

Respondent

Anonymised Parties

Brand Manager

Construction and corporate interior design company

Representatives

Ormonde & Co.  MS. Elanor M Power, B. L

Michelle Bolger ESA Consultants

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-00030798-001

09/09/2019

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

CA-00030798-002

09/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00032306-001

19/11/2019

The complainant commenced employment with the respondent on the 6 June 2018 as a Brand Manager. Her gross annual salary was €66,500. She worked 40 hours a week.

She resigned her employment on the 12 August 2019.

The complainant presented three complaints:

CA-00030798-001 is a complaint of discrimination under section 77 of the Employment Equality Act 1998 on the gender, family status and disability grounds, harassment and victimisation, on the aforementioned grounds, and failure to make reasonable accommodation for her disability. This complaint was submitted on the 9 September 2019. The most recent act of discrimination was 12 August 2019.

Anonymisation of the parties.

I have decided to anonymise the parties as the decision which will issue on this specific complaint also encompasses decisions under two other statutes. As of 23/3/2021, section 41(14) of the Workplace relations Act, 2015 precludes the disclosure of the parties’ identities.

CA-00030798-002 is a complaint of Penalisation, under Section 28 of the Safety, Health & Welfare at Work Act, 2005. This complaint was submitted on the 9 September 2019.

CA-00032306-001 is a complaint under Section 8 of the Unfair Dismissals Act, 1977 submitted on 19 November 2019.

CA-00030798-001. Complaint under section 77 of the Employment Equality Act, 1998

Summary of Complainant’s Case:

At the outset the complainant’s representative advised that the complaint of discriminatory dismissal, dismissal for opposing discrimination, and discrimination on grounds of  family status was withdrawn.

The complainant’s barrister read the submission into the record.

Complaint of discrimination on grounds of disability.

Complainant’s direct evidence.

The disability.

The complainant has a disability due to a (non – catastrophic) brain haemorrhage which occurred in 2011. She has some lasting issues with communication when she gets stressed or is searching for words. This information is up on her social media. It was common knowledge in the office. She did not have a medical examination prior to her appointment with the company.

On February 2019 her GP referred the complainant to a psychologist for stress and panic attacks due to excessive work load and the hostile treatment of her by respondent. She went on sick leave for a week due to work overload and a hostile environment.

The discriminatory acts.

Her job entailed long hours, working around the clock. She was unfairly singled out for reprimands unlike her comparator Mr D and this was due to her disability as she was perceived to be more vulnerable.

On 15 July, she informed the Managing Director (hereinafter called the “MD”) that she was attending her GP. On 16 July she submitted a medical cert dated 15 July citing workplace stress. She turned her out of office notification on her emails. She then received a notice from Facebook and LinkedIn that she had been removed as an administrator for the respondent’s pages. This had not happened when she was out on sick leave previously. On 17 July the MD requested the IT provider to forward the complainant’s’ s emails to the MD and the intern.  On 18 July, the IT provider reset the password so that she could not access her email, files, contacts and such like. The letters sent to herby the respondent  were callous and devoid of any effort to get her back to work.

Failure to provide reasonable accommodation.

The respondent refused her request of 24 June 2019 for an assistant to help her with the bid process. They failed to accommodate her disability.

Cross examination by respondent’s representative on the disability element.

The complainant stated that she informed the company secretary- around March 2019 of the long-term impact of the brain haemorrhage; she had communication issues at certain times, plus occasional headaches. The complainant stated that the discrimination towards her on the grounds of disability manifested itself in a culture of “show no weakness”; if she got tongue tied, she was demeaned. When she got upset, there was no constructive response.

To the respondent’ s assertion that she never told the respondent that she had sustained an injury in 2011 which meant that she had too much work, the complainant stated that the respondent was aware of this in July 2019.

The complainant agreed with the respondent’s statement that other staff were working long hours.

The complainant stated that she cannot remember if she told the MD she was stressed in the first call on 15 July informing him that she was attending a doctor.

The complainant’s barrister states that a prima facie case has been established and the burden has shifted to the respondent to rebut the presumption of discrimination. She relies on the decision A Technology Company v a Worker, EDA 0714 which emphasised the need to be alert to unconscious or inadvertent discrimination and that mere denials were insufficient to rebut the presumption of disability.

 Harassment on the grounds of disability.

The respondent failed to protect the complainant from the harassment meted out to her by the Operations Director (the OD).

The complainant stated in evidence that the respondent failed to adequately investigate the complaints which she first made to the MD about the behaviour of the Operations Director in December 2018, and again in 18 March 2019 when he behaved in an aggressive manner towards her at a midterm review meeting. In April 2019 she asked the MD to organise a meeting with the OD present, so they could address his ongoing hostile communication style and rectify the matter in accordance with the grievance procedure. This never happened.

The complainant relies on A Complainant v A Hospital DEC-E2002-009. The Labour Court held that an employer on notice of harassment of an employee is obliged to put in place procedures to protect the employee from such harassment. This did not happen in the instant case.

Victimisation on the grounds of disability

The complainant stated that she was victimised on the grounds of disability. The act of victimisation was the increased hostility of the respondent towards her during the period March to June 2019 as a result of her notifying the MD of her stress during the same period owing to the extent of the workload.

Complaint of discrimination on grounds of gender.

 It was a male orientated environment. The complainant was subjected to demeaning and belittling comments. Remarks were made to her by the MD in October 2018 that another woman had not fitted in and had to be let go.

The MD said to her towards the end of her employment that the 1;1 meetings with her were like counselling sessions. He did not speak to male staff in this manner. No sign of weakness was allowed. Complainant states that traits such as vulnerability which are more associated with females were belittled.

The complainant advised that persons on construction sites who didn’t have the right equipment/ protective clothing were asked to wear pink clothing.

Cross examination on gender grounds.

The respondent ‘s representative queried why the complainant would be upset 8 weeks into the job at a reference to a female employee who had not worked out. The complainant replied that it was one of a number of factors which troubled her.

The respondent stated that pink clothing was normal to which the complainant responded that it was done to demean and is indicative of an anti-female bias.

Conditions of employment: Harassment on grounds of gender.

Complainant’s direct evidence.

The respondent failed to afford her dignity and respect in contrast to how male colleagues were treated. The respondent failed to prevent and investigate the harassment of the complainant by the Operations Director though the complainant informed the respondent in April 2019 of the OD’s behaviour at meetings during the period February to April where he disengaged, worked on his laptop and took calls while she was presenting items.

Cross examination on the complaint of harassment on gender grounds.

To the question as to how other team members bringing in laptops and phones to meetings constitutes harassment, the complainant replied that they ignored her and failed to engage with issues being advanced at meetings particularly the OD and the Quantity Surveyor. There was no response to her attempts to alter this.

The complainant’s barrister stated that in A Claimant v A Company DEC-E2002-014, belittling comments made by an older manager to a younger female manager in front of other employees led the Court to find that the respondent failed to protect that employee from harassment.

In the instant case, the respondent allowed the harassment of the complainant to continue.

Victimisation on the grounds of gender

The complainant stated that she was victimised on the grounds of gender. The act of victimisation was the hostile recriminatory disposition towards her involving criticism of her work after April 2019 her following on her complaint in December 2018 and April 2019 about the failure of the respondent to address her complaints of discrimination, specifically the non- engagement of fellow managers with her at meetings.

The complainant is seeking compensation in relation to all the complaints and in accordance with the redress provisions of the Employment Equality Acts 1998-2015

CA-00030798-002 is a complaint of Penalisation, under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The complainant’s representative when challenged by the respondent’s representative about the inability to recover under both the Act of 2005 and the Unfair Dismissals Act 1977 concerning a constructive dismissal caused by the same set of incidents, clarified that the complaint of penalisation referred to the intimidatory conduct of the respondent in July and August 2019 after she had gone on sick leave, and not the act of dismissal. She was penalised for having notified the respondent MD in April and again on 24 June that she was suffering from workplace stress. The penalisation occurred from 16 July 2019 onwards when the respondent harassed the complainant while on sick leave and questioned the diagnosis and insisted that she attend an Occupational Health Doctor. The respondent continued to contact the complainant during July and August even though she asked him to cease contact. No Occupational Health appointment was offered to her until after her resignation.

The complainant is seeking compensation in accordance with the redress provisions of the Act of 2005.

CA-00032306-001 is a complaint under Section 8 of the Unfair Dismissals Act, 1977

Complainant’s direct evidence.

The complainant states that she was appointed as a Brand Manager on 6 June 2018. She interviewed twice prior to taking up her appointment; her presentation focused on rebranding, there was little focus on bidding.

On 16 August she was told that there was a 70;30 split in favour of bids. She was never previously advised of this and would not have taken on a job of this character as she was a marketing specialist.

n August 2018 the OD told her” tenders will always supercede your brand stuff”; He spoke to her in a harsh, authoritative and demeaning tone. He called the brand element of the job “fluffy stuff”. The complainant had to learn on the job, with little training or support.

The OD was aggressive towards her and openly critical of her at a meeting in August 2018 when she arrived late due to a major crime incident in the city.

She was trying to understand the job. There was open hostility. Her understanding at the interview was that she would grow a team and that she was destined to be part of the leadership team. There was no sharing of information with her.

In or around the 18 October, the MD shared an undated organisational chart which had her below the management line and on a lower rung of the organisational structure than had been the case previously. She was no longer on a line with the leadership team.

On 25 October, she was called into a meeting with the OD and the Quantity Surveyor. She experienced this as an ambush. They berated her for having missed a tender deadline though the tender was accepted.  She met the MD later in the afternoon and told him of the hostility and aggression of the OD. The complainant and the MD agreed to draw up a bid management process.  She drew it up, issued it to relevant staff, and invited feedback from all involved on an ongoing basis as to the efficacy of the process.

She had a review meeting on 3/12/2018. She got a 2% salary increase in line with her performance though she was only there 6 months. Though promised, she never received any notes or feedback from this meeting. The complainant states that the company was on notice from 2018 end of year review of isolation from the management team

She had to make many requests for management meetings. These did not happen until February 2019, some 8 months into her employment.

On 15 January, the OD told Health and Safety staff to ignore the complainant’s instructions as to the siting of Health and Safety sign as there was no agreement on same. She found this belittling. She informed the MD of this and he advised her not to ask people for their agreement, but to work with him.

In April, the complainant said to the MD “enough is enough, I cannot come into work every day in this culture” to which he replied “there are 2 sides to every story”

In April, the complainant emailed the MD asking him to try and resolve the issues between herself and the OD; this never happened. She had wanted to discuss harassment, intimidatory behaviours, , directors coming to meetings late, unprepared . These meetings were characterised by uncomfortable silences.

In June 2019 she was asked to do cold calls and to prepare podcasts. She had no experience in this area. On 14 June 2019, she raised the fact that she had to do up 10-12 tenders within a 2-week period; she and one other female employee were working around the clock to complete it.

In June the MD became cold and sour towards her as she had questioned the use of 75 % of the marketing budget on an advertisement in the Irish Times. He didn’t like push back.

 Meeting with the MD on the 24 June 2019.

The meeting with the MD on 24 June 2019 was the straw that broke the camel’s back. The complainant suggested an addition to the team- a bid coordinator -who could help her with the work load of coordinating bids and free her up for marketing work. The MD was annoyed. He said there was no “f…… way” he would consider an additional team member when she “could not be trusted to do her job. Your tenders are sub- standard”. The complainant responded by saying a second pair of eyes could be an addition and a safety net for picking up errors in tenders, to which the MD replied “ I am not your fucking editor” He compared her to other directors( she is not one not does she have their team of supports) saying they would not” put out shit like that; errors will not be tolerated”. Repeatedly he said throughout the meeting “you can either do the job or not”.

He mocked her and screamed at her. He said “I hate your one to one meetings”; they are like counselling sessions with your puppy dog eyes”.

This 50-minute-long meeting was aggressive and intimidating. He was standing over the complainant and screaming at her. She had to back away. She felt degraded. She went home feeling ill.

After 24 June she tried to make the job work for all though the MD began to ignore her. He told her on 12 July DN in an intimidating tone that she needed to “fucking drive it” in reference to media posts. By then she knew she was no longer wanted in the company. She was unable to go to the summer party on 12 July due to her work load. She had two panic attacks that weekend. Her health broke down. She had no trust that her line manager would support her. He made no effort to try and improve matters.

He contacted her while she was on sick leave, sent her harsh letters which were CC’d to her intern, the most junior member of staff which she found humiliating. She believes this was ongoing harassment. The MD accused her doctor of defamation.

She had to go on sick leave on 15 July.

By 12 August, the complainant submitted her resignation having lost faith in any process capable of delivering a fair resolution for her. No option to engage or medical appointment was offered pre-resignation only post resignation. It was the volume and tone of the communications while on sick leave that upset her.

Cross examination on constructive dismissal complaint.

The respondent’s representative asked the complainant why she had put a unicorn in her power point presentation at interview if she did not understand the dual role. The complainant responded that she had wanted the job.  The bid manager element was not clarified at the interview.

The complainant confirmed that everyone was exhausted at the training meeting of the 24 June. The complainant stated that she did protest about the workload in July. She stated that other staff worked long hours. The complainant confirmed that additional staff have been recruited in the past few months. 

The complainant when asked what the problem with the absence of a response to her strategy document was stated that she had always responded to documents circulated by other team members. She is the only one who produced long strategy reports.

Concerning the examples of additional tasks, she confirmed that the cold calls which had emerged in a brainstorming session did not happen, nor the move to a different location, nor the podcasts.

She stated that she could not go to HR as the MD was her line manager.  There was no dedicated HR officer.

The complainant confirmed that she had held one to one meetings with the MD. She confirmed that there was an employee handbook, containing a grievance procedure. She did activate the grievance procedure and raised a grievance in her email to the MD of the 25/4/2019, contrary to the respondent’s assertion that no grievance was lodged.

The complainant stated that the options aimed at a resolution, contained no appointment for an Occupational Health Review until after she resigned. She accepts that the respondent suggested mediation after she had gone on sick leave.

Mitigation

She set up her own marketing and consultancy organisation on 1 November 2019. Her take home pay from 1 November 2019 to 15 September 2020 was €14,309 and her earning potential was affected by Covid 19. She had been earning €66,500 a year with the respondent.

Legal Arguments

The complainant relies on Kennedy v Foxfield Inns Ltd. trading as the Imperial Hotel UD 549/1994 where the EAT found that due the type of conduct experienced by the complainant and the status of the perpetrator, her resignation was justified. The complainant also relies on Porter v Atlantic Homecare Ltd UD 971/2007, and Allen V Independent Newspapers 2002 ELR  132, where the respondent failed to deal with that complainant’s complaints concerning a colleague’s behaviour towards her and she developed a stress related illness.

So also, in the instant case the respondent’s failure to deal with her concerns, and the outrageous conduct of the respondent MD eliminated all trust and confidence in the respondent and left her with no option other than resignation.

Remedy.

 She is seeking compensation in accordance with the redress provisions of the unfair Dismissals Act 1977.

A-00030798-001. Complaint under section 77 of the Employment Equality Act, 1998

The respondent denies that they discriminated against, harassed or victimised the complainant on either the gender or disability grounds.

Complaint of discrimination on the grounds of disability

The respondent denies that they discriminated against the complainant on grounds of disability. They were not on notice of a brain haemorrhage or workplace  stress. There is no medical evidence outlining a disability. The certificate of February 2019 makes no mention of workplace stress. They received no medical evidence recommending reasonable accommodation.

As the complainant has acknowledged that everybody worked long hours, there was no discriminatory treatment towards her.

The complainant failed to notify or engage with the company on workplace stress.

The respondent’s representative submits that the reason the respondent took her off the platforms in July 2019 was because she was to be out on a month’s sick leave due to work place stress and it was necessary to remove her from the stated cause of her stress- the workplace. The MD’s email of 8 August stated that upon her return to work they will set up her again on email access.

Concerning any invisible injury which might have hampered her communication skills as she alleged, the respondent had no problem with her communication skills, in fact they put her on stage to present a lifetime award.

The respondent provided the complainant with a standing desk when recommended by a physio therapist. The respondent paid for gym classes for the complainant. They gave her a parking spot near the building, allowed her to work from home one day a week and her concerns about noise were taken on board.

The complainant is unable to ground a case under disability. She provided no cert or medical evidence to illustrate a diagnosis of a disability nor of the need for reasonable accommodation

Complaint of harassment

The respondent did not harass the complainant in any of his communications while she was on sick leave after the 15 July 2019. The complainant did not put the company on notice of any harassment.

No prima facie case has been established

She withdrew her complaint of discriminatory dismissal which shows the inconsistency of her approach

Complaint of discrimination on the grounds of gender.

Direct evidence of Witness 1, the MD.

The MD in evidence disputed any discrimination on grounds of gender. There is a high level of female representation in leadership team; 35% of the pool of project managers, surveyors and engineers are female as against the national norm of 11% in similar  companies.

The respondent did not harass or victimise  the  complainant

The complainant is unable to ground a case under gender.

CA-00030798-002 is a complaint of Penalisation, under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The respondent’s representative states that section 27 of the Act of 2005 does not allow relief for both a complaint taken under the Unfair Dismissals Acts and a complaint taken under Section 28 of the Safety, Health & Welfare at Work Act, 2005 where both complaints are based on the same set of facts and where the complainant is saying that she had to constructively dismiss herself.

The employer had an obligation towards the complainant to see how they could resolve the issues in 2019 – hence the query about her certificate.

Direct evidence of MD.

Concerning the alleged penalisation of the complainant after she had gone on sick leave, the MD stated that the medical statement of her workplace stress surprised him. The cert stated that she would be out for a month, but her email to him stated, “I’m off for an extended period of time”. He stated that he queried her medical certificate as he needed more details and wanted to put an investigation in place so to enable her to return to work. There wasn’t a procedure in place for this type of scenario in the company, but he took advice from his professional representatives.

The options offered to the complainant to resolve matters – medical appointments and external HR services do not constitute harassment or intimidation.

Though she had submitted her resignation on 12 August, she was asked to attend a medical on 22/8/2019 because the company had not accepted her resignation.

Concerning her complaint of penalisation, no case was made out. There was no retaliatory action

CA-00032306-001.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The respondent denies that the complainant was dismissed.

Direct evidence of the MD.

Clarity about the role.

The witness is the complainant’s line manager. The interview which secured the post for her was about a Brand and Bid Manager role. She said she could manage both functions. She said at Interview” I am the unicorn”. He wanted the dual role to be put into one basket. It is contained in the job description.

The first time that the witness was alerted to workplace stress was the doctor’s cert of July 2019.

When she said she was overwhelmed with work he said to her” let’s fix it.”. The intern appointed to assist her was a great asset; she got things done. On 13 June the MD pointed out errors and gaps in her tender submission. It was a professional response and not an attack.

Meeting of 24 June

The meeting of the 24 June was an all hands meeting. The complainant was very stressed. The meeting wanted to look at what had to be done. Staff operate in a fast-paced environment. That was the context for this meeting. In the one on one meeting with the complainant on the 24 June, she said she needed an administrative assistant. At the meeting on the 24 June, he used the expression “puppy dog eyes”. The waterworks started. The witness stated the any criticism ever put to her was taken as a personal attack. He told her that she has to accept criticism. He believed that he had accommodated her on her workload. He wanted her to up her standard of work. He accepts that he raised his voice. He was frustrated at constantly having to explain things to the complainant. He banged his hand angrily on the table. He did not know why she was crying.

The witness stated that he also advised her at a later date that she had up her game on social media. The witness advised that the people he employs are ” at the top of their game” It is a pressurised job, but it is felt across all functions.

The witness refuted the complainant’s assertion that there were 10 tenders a month. It was nearer to five.

The complainant never advised the witness that she was unhappy with how he had handled her complaint concerning the Operations Manager’s treatment of her.

They set up 2 appointments for a medical assessment and engaged a HR service to resolve matters. They offered mediation. All four options were rejected by the complainant.

In November 2019 the respondent still considered her to be employed by them. Her picture was on the web site. They tried to get her to mediate. 

She did not activate any procedure against the respondent..

Post resignation

The respondent was surprised at her doctor’s statement that she was suffering from workplace stress.

Cross examination of the MD.

Upon being questioned if the Operations Director was too robust, the witness stated that he asked him to adjust his communication style. He Immediately and informally spoke to the OD and QS. He told them to pull their horns back in to which the OD responded, “are we to play nice in the sand box”. The complainant never raised any complaints after that point.

It is correct that the complainant told the witness that she was under pressure. Both he, the complainant and other staff worked late some evenings to get bids out. It was quiet some evenings. She did not raise working hours with the witness. On the last occasion on which the complainant raised the need for an additional staff member, he advised that, firstly, she needed to improve and review the process for submitting a tender. He told her that the tender documents needed to be of a standard which would enable them to be passed on the administration section. She frequently came with issues re workload, but he wanted her to focus on an improved tender process.

He accepted that he raised his voice with the complainant at the meeting on the 24 June 2019. The complainant’s representative stated that he had not contested the complainant’s evidence in chief, at the first hearing, reporting this remark to which the respondent’s representative stated that what the witness was stated to have said was “you couldn’t hold in the tears”

He was frustrated at constantly having to explain things to the complainant. He banged his hand angrily on the table.

He does not recall the exact comment he made in relation to how to improve the company’s social media presence in July.

The complainant made no complaints after the 24 June.

The witness stated that in relation to her statements about being isolated, they discussed it a review and how to improve communications. Concerning the number of hours worked by the complainant the witness stated that it would not be true to say she worked the same number of hours as him; she worked less hours.

The MD stated that he never received a complaint as per the grievance procedure.

 She was not removed from the organisational chart.

The MD’s email to the complainant of 8 August stated that upon her return to work they would set her up again on email access.

Direct evidence of Witness 2.

She occupies the role of Finance Director for past 3 years.

The witness is clear that the job to which the complainant was appointed had 2 different but combined functions. The complainant was very clear in the interview process about doing 2 different functions. She brought enthusiasm to her job, but over time she preferred the marketing element and wanted it to be the dominant element. This was evident in that she was asking for opportunities to engage in more marketing.

The witness and the complainant worked on the organisation of the summer party for clients who contrary to her evidence did not organise it on her own.

The witness clarified that the first time they were made aware of a grievance was when they received the medical cert of 15 July. The witness clarified that the grievance procedure provided for a notification to the line manager and if unresolved, the matter may be referred to the MD who was the final port of call or the complainant could have come to the witness.

The witness stated that the complainant had never indicated to her that she felt discriminated against or intimidated, or that she had a disability. In fact, the witness only found out about the disability when the complaint was lodged with the WRC.

The witness never had issues with the respondent.

The average number of tenders per month was 5 and not 10 as contended by the complainant.

The complainant didn’t engage with any of the company’s offers.

She withdrew her complaint of discriminatory dismissal which shows the inconsistency of her approach

Mitigation.

The respondent states that she chose to develop a start-up company. While the pandemic affected job opportunities, the situation was different pre-pandemic and opportunities to mitigate her loss were not pursued by her. A start-up company will take 2 years to realise a profit.

CA-00030798-001. Complaint of discrimination under section 77 of the Employment Equality Act 1998

The most recent act of discrimination was 12 August 2019. The cognisable period is 10 March 2019 to 9 September 2019.

I am required to establish if the complainant was discriminated against on grounds of gender and disability contrary to section 8 and in terms of section 6 (2)(a) and (g) of the Acts, if she was denied reasonable accommodation contrary to section 16(3) of the Acts, if she was victimised contrary to section  74 of the Acts and if she was harassed contrary to section s 14A of the Acts on the basis of her gender and disability.

I must first consider if the complainant has established a prima facie case of discrimination.

The complaint of discrimination on grounds of disability

Burden of Proof.

Section 85A of the Employment Equality Acts 1998-2015 lays the onus of proof with the complainant to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A (1) of the Acts states that

“In any proceedings where facts are established by or on behalf of a complainant from which it may be presumed that discrimination has occurred in relation to him/her, it is for the respondent to prove the contrary”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201 the Labour Court concluded that”

 “a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”

The complainant must therefore raise the presumption of discrimination. If she does, the respondent must prove that she was not discriminated against on the grounds of her disability or gender.

In Hallinan v. Moy Valley Resources DEC-S2008-25, a complaint taken under the Equal Status Act, 2000, the equality officer held that in order to establish a prima facie case of discrimination, the following must be established:

(a) The complainant must establish that he or she is covered by the protected ground;

(b) Establish the specific treatment has allegedly taken place

(c) The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

Is the complainant covered by the protected ground?

Applying the above provisions to the circumstances of the instant case, the complainant advises that she is covered by a protected ground, section 6(2) (g), in that she suffers the after effects of a brain haemorrhage sustained in 2011.She maintains that the respondent was on notice of this fact. The respondent did not contest the fact of her disability. In addition, she suffered from workplace stress as evidenced by her seeking medical help in February 2019.The respondent was notified of her workplace stress on 15 July which occurred after the alleged discriminatory acts occurred.

 A disability is defined in section 6 of the Employment Equality Acts 1998-2015 and sets out the impairments capable of compromising an individual’s ability to carry out the functions of the job. The degree of impairment experienced by the complainant was that she had occasional headaches, she became tongue tied when stressed and she experienced vulnerability when attacked. There was no medical evidence to support this analysis or how the complainant’s disability could limit  or impair her capacity to discharge the functions of her role. The Equality Officer in considering  the relevance of the absence of medical evidence in a complaint of discrimination on the disability ground in, A Worker  V A Food ManufacturerDEC-E2010 -187 took account of the decision of the Labour Court in Melbury Developments v. Valpeters [EDA0917], in which the Court, asked to interpret S. 85A of Acts which addresses the shift in the burden of proof, held unequivocally that the onus of establishing a prima facie case is on the complainant. The Equality Officer held that Melbury meant the absence of medical evidence attesting to the existence of a disability compromising the individual’s ability to do the job deprived the complainant of the opportunity to discharge the probative burden that he suffered from a disability as defined in S. 2(c) of the Acts. The Equality Officer concluded that

“His claims of discriminatory treatment and discriminatory dismissal on this ground must therefore fail”.

This decision was followed in Guinane v Tesco Ireland DEC- E2011-81

Aside from the subsequent challenges which the complainant would have to meet as to whether her stated impairments fall within the range of impairments identified in section 2 (c) of the Acts  and as to whether her workplace stress is a disability which enjoys the protections of the Act, I find that she has failed to discharge the onus resting on her to prove as opposed to assert that she has a disability that comes within the definition set out in section 2 ( c) of the Acts or that she enjoys the protection of section 16(3) which obliges an employer to provide” special treatment or facilities”.

She has failed to establish a prima facie case of discrimination and her complaint under this limb of the Employment Equality Acts cannot succeed.

Harassment on the grounds of disability.

Section 14(7) ties the protection against harassment to any of the protected grounds.

As the complainant has failed to establish a prima facie case of discrimination on the grounds of disability, I find her complaint of harassment on the grounds of disability contrary to section of the Acts cannot succeed.

Victimisation on the grounds of disability

The incidents of victimisation cited by the complainant was the increased hostility of the respondent towards her during the period March to June 2019 as a result of her notifying the MD of her stress during the same period owing to the extent of the workload.

In Moriarty v. Dúchas DEC-E2003-013 the Equality Tribunal emphasised that the act which results in victimisation must be connected to a reliance on rights set out in section 74(2) of the Employment Equality Acts. She stated

 “It is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”

The complainant has not demonstrated how she has relied on or invoked any of rights set out in section 74(2) of the Employment Equality Acts. As an exercise of one’s entitlements under section 74(2) is a precondition to an examination of the treatment complained of, the complainant cannot succeed in this complaint of victimisation.

I do not find that the respondent victimised the complainant on the grounds of disability.

Discrimination on the grounds of gender

The obligations facing a complainant advancing a complaint of discrimination on the gender grounds are the same as those that apply under any of the protected grounds and those that I have applied in examining the complainant’s complaint of discrimination on the disability ground. The Labour Court in Europa Plus Limited v Nijole Kvostiene, EDA 121 stated

“If the Complainant shows that the treatment which he or she was afforded was less favourable that that afforded to a comparator whose circumstances are similar, other than in respect to a protected characteristic, the first question is resolved in his or her favour. The Court must then go on to consider if the impugned treatment was on one of the proscribed grounds”.

Instances of less favourable treatment.

The complainant cites incidents and remarks as evidence of less favourable treatment on the gender ground relative to a male comparator, Mr D.

The respondent MD remarked to her in August 2018 that the company had to let a female employee go.  Her name was removed from the line of senior managers on the website in October 2018 -and this was contested- after she complained about the manner in which the Operations Director engaged with her. Both aforementioned incidents are outside of the statutory period. The complainant pointed to section 77(5) as a mechanism which should allow her complaints to be seen as part of a continuum and thus render them admissible. The Labour Court in Hurley v County Cork VEC (EDA 1124 held in respect of section 77(5) of the Employment Equality Acts that

 “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. “

But the Labour Court held in both Cork County VEC v. Hurley EDA 24/2011 and in County Dublin VEC v. Dodo EDA 1327/2013 that a discriminatory act must have occurred within the limitation period in order to admit those acts occurring outside of the statutory period. 

Within the cognisable period the complainant was required to comply with a higher standard than that expected of her comparator in that her errors were frequently criticised. The Equality Officer in Darguzis v. Lough Corrib Engineering Ltd., stated that in order for discrimination to be established by an employee, he or she must demonstrate a “difference in treatment” and not simply treatment of a manner which is less than ideal. The complainant is not aided by her failure to demonstrate errors or omissions on the part of Mr D, which were ignored. The complainant’s own evidence was that everybody working there was stretched.

Based on the evidence submitted, the complainant has failed to establish a prima facie case of discrimination on grounds of gender and her complaint cannot succeed.

Harassment on the grounds of gender.

The right to work in an environment free of harassment is a term and condition of employment. Section 14(A) of the Acts broadly provide that harassment is any

 “unwanted conduct related to any of the discriminatory grounds”.

And is “conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”

The respondent failed to investigate the complaints she submitted to the MD from October 2018 to April 2019 concerning the harassment of her by the Operations Director. The instances of alleged harassment were the berating of her for the late submission of a tender in October 2018, the aggressive confrontation with the Operations Director on 15 January concerning the saving of files to the shared drive, and a mid -tender review on the 18 March where the Operations Director was condescending and for the most part did not participate in the review and kept working on his laptop.

Criticism of an employee for a missed deadline, conflict with a female colleague about how to save data and disengagement at a meeting are not responses or behaviours peculiar to males. It is not sufficient to state that a female would have responded differently to her errors or that a male would have had a different response were a male colleague to have erred in these ways. That is not to state that these responses could not have been examined via another process but that is a different matter to finding that the complainant was harassed on the basis of her gender. The harassment of her continued on the 24 June when the MD was contemptuous towards what she would describe as female traits such as vulnerability. The complainant has stated throughout the hearings that the workplace was about” cracking heads” and exhibiting an intolerance of any vulnerability. Vulnerability is not the exclusive preserve of females. So, there is  no evidence offered that a male worker exhibiting vulnerability would not have been treated in this dismissive manner.

I do not find that the complainant was harassed on the basis of her gender.

Victimisation on the grounds of gender.

The complainant complained to the MD in an email of the 24 April of the paucity of cooperation within the management team, the absence of engagement when other managers did attend meeting at which she would be contributing and  the tension at the meetings. After her email the respondent victimised her by criticising her work and becoming more hostile.

In Moriarty v. Dúchas DEC-E2003-013 the Equality Tribunal emphasised that the act which results in victimisation must be connected to a reliance on rights set out in section 74(2) of the Employment Equality Acts. She stated

 “It is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”

The complainant’s evidence did not identify how she had invoked any of rights set out in section 74(2) of the Employment Equality Acts. As this is a precondition to an examination of the treatment complained of, the complainant cannot succeed in this complaint of victimisation.

This complaint has not been made out.

I do not find that the complainant was victimised on the basis of her gender.

CA-00030798-002 is a complaint of Penalisation, under Section 28 of the Safety, Health & Welfare at Work Act, 2005.

I am required to establish if the respondent has breached section 27(3) of the Act of 2005 which prohibits penalisation where an employee has made a representation to an employer on a health and safety matter.

In response to the respondent’s statement that section 27(5) of the Act of 2005 does not permit relief for penalisation resulting in dismissal under both the Act of 2005 and the Unfair Dismissals Act 1977, the complainant’s barrister advised at the hearing that the act of penalisation was not the actual dismissal but the alleged intimidatory behaviour of the respondent following the submission of her medical cert of 15 July 2019 diagnosing workplace stress. The intimidatory behaviour which occurred between the 15 July and the complainant’s resignation on the 12 August and thereafter was manifested in the respondent’s continued questioning of the complainant while on sick leave, questioning the diagnosis and insisting that she attend an Occupational Health Doctor despite her stated desire for the respondent to cease contact with her. No appointment was offered to her until after her resignation. This penalisation was a result of her notification to the employer between March and June 2019 of her excessive workload, her resultant stress and the behaviour of the Operations Director towards her.

The complainant’s written and oral submission also identified her relegation in or around 18 October 2018 to a lower tier of management on a revised organisational chart as an instance of penalisation prompted by her complaint to the MD in late August 2018 about the Operations Director’s hostile behaviour towards her.

However, section 41(6) of the Workplace Relations Act 2015 requires a complaint to be presented within 6 months of the date of the contravention. The complaint was lodged 11 months following the change in the organisational chart. No case was made on the basis of reasonable cause in accordance with section 41(8) to extend the time limits.

I do not have jurisdiction to hear the element of the complaint concerning an act of penalisation which occurred in October 2018. 

Section 27 (1) defines penalisation as:

“Any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

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

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

(e) coercion or intimidation”

Section 27 (3) of the Act of 2005 sets out the protected acts which a complainant must exercise or invoke in order to make out a complaint of penalisation.

The Labour court held in St John’s National School v Ms Jacinta Akduman, HSD102, that

“ employees will only be successful in a penalisation claim under the 2005 Act if they can prove that they: a) made a complaint to their employer in respect of a health and safety matter; and b) suffered a detriment as a result of the actions of their employer; and c) It can be proven that they would not have suffered this detriment had a complaint not been made in the first place”. 

I am not convinced that a remark to the respondent that she was stressed and a complaint about the excessive workload meets the requirements set out in section 27(3)(c) -a precondition to succeeding in a complaint of penalisation.  Aside from this conclusion, I do not find that enquiring about a certificate which diagnoses an employee as ill with workplace stress and requesting more information about the illness constitutes a detriment nor does the requirement for the employee to attend an occupational health doctor, a commonplace response to a such a diagnosis. An employer has a right and an obligation to understand the problem, its duration and potential remedy. I do not find that the respondent’s response to the complainant’s medical certificate- if excessive -constitutes intimidatory behaviour as prohibited in section 27(2) (e) and is not behaviour which falls within the statutory definition of penalisation.

Section 41 of the Workplace Relations Act specifies the powers of an adjudication officer in relation to a complaint of concerning a contravention of section 27 of the Act.

In accordance, therefore with section 41 of the Act of 2015, I do not find this complaint to be well founded. 

 CA-00032306-001; Complaint under Section 8 of the Unfair Dismissals Act, 1977

I can understand the respondent’s objection to the late submission of this complaint and after the complaints submitted under the Employment Equality Acts and the Safety, Health & Welfare at Work Act, 2005 and based on the same set of facts have had a’ test drive’ at the first hearing in November 2019. However, a complainant is entitled to invoke statutory rights under this statute.

I am obliged to establish if section 1 (b) of the Act of 1977 operates to validate this complaint of constructive dismissal. Section 1 (b) of the Act states

 “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

In light of the statutory definition contained in section 1 of the Act of 1977 as amended, the resultant and established principles adopted by the relevant fora and the courts, the onus lies with the complainant to demonstrate that her resignation was justified.

In justifying her decision to terminate her employment the complainant will have to demonstrate that the circumstances of her dismissal met the tests as set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) ICR 221 and described thus:

 “conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself discharged from any further performance”.

and the reasonable test which was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving”

These tests were followed in a line of Irish authorities.

Applying the above tests to the circumstances of the instant case, the complainant’s case rests on what she maintains is the unreasonableness of the respondent’s conduct manifested in;

Assigning her to a Brand and Bid manager’s functions rather than a Brand Manager’s role which was the role she understood she had.

The respondent’s enabling of her isolation within the organisation.

Failure to deal with her complaints of the OD’s behaviour,

Workload and resultant stress.

The demeaning manner in which the MD spoke to the complainant

The respondent’s conduct.

Assigning her to a Brand and Bid manager’s functions rather than a Brand Manager’s role which was the role she understood she had.

I find that the contract which the complainant signed was clearly for a Brand and Bid manager and her response in cross examination when asked why she had said at interview that she could do both roles was not to deny the fact of having made that statement, but to attribute it to her desire to get the job. I do not find that the requirement to execute the contracted role was unreasonable conduct on the part of the respondent.

The respondent’s isolation of her within the organisation.

The validity of her seeking greater collaboration with colleagues was not contested. The respondent was slow to offer structured opportunities for greater engagement. He did little to alter what seemed on the basis of the uncontested evidence to be a grudging toleration of the complainant at meetings. If this level of collaboration was seen as a luxury which they could not afford, or if it was the case that the respondent merely wanted people ‘to get on with it,’ this should have been explained to her.

Failure to address her complaints concerning the OD’s behaviour,

The history of the respondent’s response to her requests was dilatory. Her evidence about how the Operations Director spoke to her and his hostility towards her was not contested. The respondent in evidence stated that he told him to pull in his horns, but his evidence also disclosed the Operations Director’s contemptuous manner towards the complainant – rolling his eyes when she spoke- which the respondent  didn’t appear to check. In not confronting this contemptuous attitude he enabled it. The MD did not investigate her complaints according to the respondent’s own procedure which requires that matters be dealt with promptly and within 48 hours of “either the previous stage or matter giving rise to the grievance.” The respondent’s response to her complaints about the OD’s behaviour was to tell the complainant that there were 2 sides to every story and that she had made demands and banged the table but took her concerns no further.

I find that the respondent failed to put in place any measures to check the contemptuous attitude of her colleague.

I find that the respondent behaved unreasonably in failing to process the complainant’s complaints.

Workload and stress.

It is uncontested that the first medical indication of stress was the medical certificate of July 2019.

I do not find the respondent’s conduct unreasonable in the absence of knowledge about the complaint’s stress. The complainant stated that everyone working there was stressed.

The demeaning manner in which the MD spoke to the complainant.

The complainant states that the meeting with the MD on the 24 June 2019 was the straw that broke the camel’s back, and which left her with no option other than resignation.

The evidence points to the fact that the statements attributed to the MD and contained in the complainant’s evidence were uttered at the meeting on the 24 June. He accepted that he was angry and banged the table.

While it is reasonable for the respondent to expect the complainant to accept professional criticism that is not a licence to deliver it in a demeaning manner. I find that the respondent MD’s remarks were a hostile, needlessly insulting and demeaning response to her concerns. The complainant’s uncontested record of this meeting has him saying he’s not sorry he spoke to her in that way. The object of the exercise was to examine her concerns about her workload and to consider how they could be addressed. But his remarks illustrated his exasperation with her requests and his inability to respond in anything other than an explosive and demeaning tirade. If he felt her requests were unmeritorious or out of sync with the culture of the organisation, this view should have been delivered in a way that respected her right to be treated with dignity. He repeated his abusive comments on 12 July.

Obligation to use the grievance procedure.

The respondent argues that she failed to use the grievance procedure and therefore cannot succeed in her complaint. I find that her email of 25 April constituted compliance with the grievance procedure. This email of 25 April while discursive in tone, contains the requests which she had put to the MD. It asks for assistance to stem the isolation and to resolve the issues of communication, so I cannot accept that they are mere observations as described by the MD devoid of a request to tackle the communication issues. It is not disputed that these issues had been raised previously by the complainant. The respondent MD’s response to her request made orally on the previous day, the 24 April, was to deflect her away from these concerns and concentrate on improving the bid process. There is nothing wrong with trying to improve a process, but her issues, separately, deserved a response either by way of some accommodation of her requests or by advising her that no accommodation was possible.

The respondent was on notice of her requests.

Regarding the conduct of the respondent, it wasn’t just a single once-off abusive outburst for which she received no apology. The history of the respondent’s response to her concerns is inertia in the face of a grudging toleration of and a disrespectful attitude towards her contribution, a failure to address her shortcomings in a structured, respectful manner and an absence of any constructive pathway to deal with her concerns.

 On the basis of the written and oral evidence, I find that it was not unreasonable for the complainant to conclude that the respondent would continue to ignore her right to be treated with dignity and respect.

I find the respondent’s conduct was so unreasonable as to justify her resignation.

I find that the complainant was unfairly dismissed.

Redress.

The complainant seeks compensation.

I take on board the respondent’s arguments about the complainant limiting her ability to mitigate her loss by opting to start her own company. Considering this fact, the evidence submitted and her earnings to date, I require the respondent to pay the complainant the sum of €27,700 which represents five months salary.

CA-00030798-001. Complaint under section 77 of the Employment Equality Act, 1998

I find that the complainant failed to raise a prima facie case of discrimination and her complaints of discrimination and harassment on the grounds of gender and disability in terms of section 6(2)(a) and (g) and contrary to section 8(1) (c) of the Employment Equality Acts cannot succeed.

I find that the complainant was not victimised on either the grounds of gender or disability within the meaning of Section 74 of the Employment Equality Acts.

CA-00030798-002 is a complaint of Penalisation, under Section 28 of the Safety, Health & Welfare at Work Act, 2005.

I do not find this complaint to be well founded.

CA-00032306-001 is a complaint under Section 8 of the Unfair Dismissals Act, 1977.

I find this complaint to be well founded. I require the respondent to pay the complainant the sum of €27,700 in compensation for this breach of the Act of 1977 as amended.

Failure to raise an inference of discrimination, absence of medical evidence, penalisation. Constructive dismissal complaint upheld.