Complainant

Respondent

Parties

Rebecca  Smyth

Ida

Representatives

Jay Power, SIPTU

Kiwanna Ennis BL Instructed by Elizabeth McGeown, Addleshaw Goddard Solicitors.

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-00043332-001

30/03/2021

The Complainant commenced employment with the Respondent on 01/02/1994.

This complaint presented under section 79 of the Employment Equality Acts, 1998 – 2015 was received by the Workplace Relations Commission on 30th March 2021. An earlier complaint submitted under s.13 of the Industrial Relations Act, 1969 was received on 18th September 2020. The two complaints have been amalgamated under file reference ADJ – 00029882. A separate recommendation has been completed in respect of this the Industrial Relations complaint.

Ms Smyth is a loyal, dependable, and knowledgeable Level B Executive Assistant at IDA Ireland with 28.5 years of unblemished service.   She is the only member of the Emerging Business Division (EBD) remaining since its establishment in 2010 and has seen circa 40 people come and go through the division.  In recent years she has welcomed, mentored, and trained new team members all of which were higher grades than her.   Ms Smyth is regularly called upon by the current holder of an Acting/Developmental Level C post for guidance and training because of her historical knowledge and experience of the workings of an operations division.  This year EBD has 3 new higher-grade starters that will also look for help from Ms Smyth as they onboard.  For these reasons IDA HR’s treatment of Ms Smyth is nothing short of disgraceful and distressing discrimination to witness in a society where 1 in 4 people have mental health issues.

Ms Smyth freely acknowledges that the grief of losing a very close friend and job-sharing partner had a profound effect on her in late 2013 through to early 2014.  With the help of her Consultant Psychiatrist and her own determination, strength and hard work Ms Smyth was deemed fit to return to work in May 2014. For IDA HR to seek a new fit to return-to-work letter in October 2019 some 5 years and 10 months later (now 8 years and 1 month), is something that only IDA Ireland can answer for. Also, under the Employment Equality Acts, if an employee applies for promotion the employer cannot discriminate against them because of current or past experience of mental health difficulties.

Ms Smyth has not only suffered mentally and professionally at the hands of IDA HR since October 2019 when she was prohibited by them to apply for promotion but has been penalised financially, through loss of promotional earnings and future pension entitlements.   In addition to the 2019 Level C role IDA HR has since advertised 4 other Level C roles.  Owing to Ms Smyth’s previous interactions with IDA HR and their refusal to interview her unless she provided them with a “letter of comfort” from her doctor to say she was medically fit to work full-time Ms Smyth would have been prohibited by IDA HR again from applying for the roles.

Ms Smyth is a loyal, dependable, and knowledgeable Level B Executive Assistant at IDA Ireland with 28.5 years of unblemished service.   She is the only member of the Emerging Business Division (EBD) remaining since its establishment in 2010 and has seen circa 40 people come and go through the division.  In recent years she has welcomed, mentored, and trained new team members all of which were higher grades than her.   Ms Smyth is regularly called upon by the current holder of an Acting/Developmental Level C post for guidance and training because of her historical knowledge and experience of the workings of an operations division.  This year EBD has 3 new higher-grade starters that will also look for help from Ms Smyth as they onboard.  For these reasons IDA HR’s treatment of Ms Smyth is nothing short of disgraceful and distressing discrimination to witness in a society where 1 in 4 people have mental health issues.

Ms Smyth freely acknowledges that the grief of losing a very close friend and job-sharing partner had a profound effect on her in late 2013 through to early 2014.  With the help of her Consultant Psychiatrist and her own determination, strength and hard work Ms Smyth was deemed fit to return to work in May 2014. For IDA HR to seek a new fit to return-to-work letter in October 2019 some 5 years and 10 months later (now 8 years and 1 month), is something that only IDA Ireland can answer for. Also, under the Employment Equality Acts, if an employee applies for promotion the employer cannot discriminate against them because of current or past experience of mental health difficulties.

Ms Smyth has not only suffered mentally and professionally at the hands of IDA HR since October 2019 when she was prohibited by them to apply for promotion but has been penalised financially, through loss of promotional earnings and future pension entitlements.   In addition to the 2019 Level C role IDA HR has since advertised 4 other Level C roles.  Owing to Ms Smyth’s previous interactions with IDA HR and their refusal to interview her unless she provided them with a “letter of comfort” from her doctor to say she was medically fit to work full-time Ms Smyth would have been prohibited by IDA HR again from applying for the roles.

Summary and Timelines

Employment History

10/10/2019       IDA HR advertised a full-time Acting/Developmental Level C role for 9 months duration (ended up 14 months duration) in EBD, the division Ms Smyth works in since its inception in 2010.

24/10/2019        Ms Smyth submitted her application for the full-time Acting/Developmental Level C role in EBD.

25/10/2019        Ms Smyth received a phone call from Ms Jemma Lyons, HR and OD Manager, IDA Ireland.  Ms Lyons said she had been made aware by Ms Ronna Doocey, Head of HR and OD that Ms Smyth had a medical condition that prevented her from working full-time. 

This is totally incorrect and was a very uncomfortable and stressful conversation for Ms Smyth.

By way of background Ms Smyth had 14-weeks off work in 2014 (8 years ago and 1 month ago) following a bout of clinical depression after the death of her good friend and job-sharing partner.  She returned to work on a 60% working week as her normal working pattern since 1998 was part-time of her own choice.

In 2017 Ms Smyth had 12-weeks off work to have an operation. She returned to work on a 60% working week as her normal working pattern since 1998 was part-time of her own choice.

This is discrimination on the grounds of mental health as IDA HR asked questions of Ms Smyth’s mental health absence in 2014 and not her later absence in 2017 following an operation.

Also, under the Employment Equality Acts, if an employee applies for promotion the employer cannot discriminate against them because of current or past experience of mental health difficulties.

30/10/2019        Ms Smyth received a phone call from Ms Ronna Doocey, Head of HR and OD, IDA Ireland.  Ms Doocey said that IDA HR would require a “letter of comfort” from Ms Smyth’s doctor to say Ms Smyth was medically fit to work full-time before she could be granted an interview.  This is discrimination as Ms Smyth had already provided a return-to-work letter in 2014.  In addition, the only other candidate that was interviewed for the role had a physical injury at the time and was not asked was she medically fit to work full-time.

It is further discrimination that Ms Doocey referred back to Ms Smyth’s mental health absence in 2014 and not her later absence in 2017 following an operation.

Also, under the Employment Equality Acts, if an employee applies for promotion the employer cannot discriminate against them because of current or past experience of mental health difficulties.

                              Following the argumentative phone call and Ms Doocey’s firm refusal to grant Ms Smyth an interview unless she provided IDA HR with a “Letter of comfort” from her doctor who treated her in 2014 Ms Smyth had no option but to withdraw her job application. This is the basis for the original and subsequent WRC adjudication hearing requests.

10/01/2020        Ms Smyth and her SIPTU Organiser Mr Jay Power commenced an informal grievance procedure against IDA HR.

04/02/2020        An informal grievance meeting was held with Ms Smyth, Mr Power and Ms Doocey in attendance.  Ms Doocey confirmed at this meeting that Ms Smyth would need a “letter of comfort” from her doctor who treated her in 2014 following her diagnosis of clinical depression to be granted an interview for any future full-time jobs at IDA Ireland. This is discrimination as Ms Smyth had already provided a return-to-work letter in 2014.  In addition, the only other candidate that was interviewed for the role had a physical injury at the time and was not asked was she medically fit to work full-time.

It is further discrimination that Ms Doocey referred back to Ms Smyth’s mental health absence in 2014 and not her later absence in 2017 following an operation.

Also, under the Employment Equality Acts, if an employee applies for promotion the employer cannot discriminate against them because of current or past experience of mental health difficulties.

12/02/2020        Mr Power confirmed to Ms Doocey that Ms Smyth was lodging a formal grievance against IDA HR with the support of SIPTU.

16/06/2020        A formal grievance meeting was held with Ms Smyth, Mr Power and Mr John Nolan, Secretary and Manager Corporate Services, IDA Ireland.  Mr Power said that “Our member Rebecca Smyth’s grievance is Discrimination under the Employment Equality Acts 1998 – 2015”.  At the end of the meeting Mr Nolan asked Ms Smyth “why did you not get the letter and get on with getting your promotion”.  Again, there is a discrimination element and does not imply that Mr Nolan was behaving impartially.

08/07/2020        A further formal grievance meeting was held with Ms Smyth, Mr Power and Mr Nolan.

24/07/2020        Mr Nolan’s formal grievance decision was sent to Mr Power.  He found that Ms Smyth was not discriminated against by IDA Ireland.

29/07/2020        Mr Power informed IDA HR that Ms Smyth would be appealing Mr Nolan’s decision with the support of SIPTU.

09/09/2020        Ms Smyth and Mr Power attended an appeal meeting with Mr Leo Clancy, former Head of Technology, Consumer and Business Services, IDA Ireland.  During the meeting Ms Smyth asked Mr Clancy why IDA HR did not consider her 2017 return-to-work letter following an operation as her most current letter as regards her fitness to work.   Mr Clancy asked Ms Smyth to send him a copy of the letter, which she did.

11/09/2020        Mr Clancy sent a report upholding Mr Nolan’s decision. The report had no mention of Ms Smyth’s 2017 return-to-work letter.

18/09/2020        Mr Power applied to the WRC outlining Ms Smyth’s complaint against IDA HR.

23/12/2020        IDA HR advertised a permanent Level C role in its Talent, Transformation and Innovation Division.

21/07/2021        IDA HR advertised an Acting/Developmental Level C role in its Emerging Business Division with no end date.

23/08/2021        IDA HR advertised a permanent Level C role in its Life Science Division.

12/01/2022        IDA HR advertised a permanent Level C role in its International Financial Services Division.

Ms Smyth would have applied for all 4 roles outlined above.   But owing to her previous interactions with IDA HR and their refusal to interview her unless she provided them with a “letter of comfort” from her doctor to say she was medically fit to work full-time Ms Smyth would have been prohibited by IDA HR again from applying for these roles. This is on-going discrimination as Ms Smyth had already provided a return-to-work letter in 2014. 

It is further discrimination that Ms Doocey referred to Ms Smyths mental health absence in 2014 and not her later absence in 2017 following an operation.

 Also, under the Employment Equality Acts, if an employee applies for promotion the employer cannot discriminate against them because of current or past experience of mental health difficulties.

Background

In 1993 Ms Smyth commenced working in IDA Ireland, Southeast Regional Office, Waterford on a full-time basis at Level A.  Ms Smyth was promoted in 1998 to a job-sharing role of her own choice with Ms Imelda Power at Level B on a rota working 3 days one week and 2 days the next week. In 2010 the Southeast Regional Office was downsized and as a result both ladies were asked to work in EBD, Dublin remotely from Waterford on the same rota.  Ms Power was on sick leave from January 2013 until her untimely death in September 2013. As a result, Ms Smyth worked 3 days a week every week in EBD remotely from the Waterford Office or in IDA Ireland’s HQ in Dublin depending on the business needs of the division. Ms Smyth continues to work in EBD 3 days a week to this present day.

In January 2014 Ms Smyth was diagnosed with clinical depression following the loss of her good friend and job-sharing partner and was off work on sick leave for 14-weeks, 8 of which were spent in St John of God Hospital, Stillorgan recuperating.  In May 2014 Ms Smyth returned to work and at no stage did IDA HR refer Ms Smyth to Occupational Health or a Chief Medical Officer.  In July 2014 she was given an employment contract for 1 year for a 60% working week in EBD. IDA HR have not renewed this contract to the present day or engaged with Ms Smyth on it.  Furthermore, IDA HR have never replaced Ms Power’s half of the role within EBD which has led to Ms Smyth occasionally working a 5-day week around busy committee circulation dates.

In April 2019 Ms Smyth was interested in a promotional opportunity to Level C in the Financial Management Division, Dublin that was advertised internally.  She contacted IDA HR to ask could the role be worked from the Waterford office on a part-time basis. IDA HR replied that according to the Shared Resources Committee (SRC) the post was Dublin based and full-time.  Ms Smyth was disappointed that she could not interview for this post.

On July 30th, 2019 Ms Smyth had an impromptu meeting with her then Level F Manager, Mr Rory Mullen and asked if an upcoming Acting/Developmental Level C vacancy in EBD would be advertised under IDA Ireland’s new “open location roles” policy which had just been implemented. He said no it would not be advertised that way as it was “bad enough” having Ms Smyth based in Waterford besides having another team member based remotely.

The following day Ms Smyth arranged to meet her then Grade 1 Divisional Manager, Ms Eileen Sharpe to discuss some difficulties she was having with Mr Mullen.  One issue was that he said Ms Smyth had “the most shit job in the division, that she was a Level B, worked part-time and was based in Waterford”.  As part of this discussion Ms Sharpe said a promotion would be good for Ms Smyth and asked if she was promoted would Ms Smyth increase her working days from 3 to 4 days a week.  Ms Smyth said she would.

On October 10th, 2019 despite Mr Mullens initial objections, IDA HR advertised the Acting/Developmental Level C post in EBD under the new “open location roles” policy. Ms Smyth was delighted to finally have a chance to apply for promotion and proceeded to prepare her application form for submission on October 24th. Ms Smyth also engaged an external Recruitment and HR company to get help with her application form and interview coaching.

On October 23rd, 2019 Ms Sharpe telephoned Ms Smyth to say that the vacancy would definitely be full-time and not 4 days per week as she had alluded to at their meeting in July. 

However, she said that if Ms Smyth was successful at the interview process, she could apply to the SRC to have the job reduced to 4 days per week for the 9 months duration of the contract. 

On October 24th, 2019 just one hour before Ms Smyth was due to submit her application form Ms Jemma Lyons, IDA HR whom Ms Smyth has never met face to face rang and stated that Ms Ronna Doocey, Head of HR and OD, had informed Ms Lyons that there was an SRC approved minute dating back to June 2014 on Ms Smyth’s HR file that stated she had been granted a 60% working week on medical grounds.

Ms Lyons proceeded to ask Ms Smyth would she like to discuss her “medical condition”.  Ms Smyth felt pressurised to tell Ms Lyons about her diagnosis of clinical depression following her friend and job-sharing partners untimely death in September 2013. Ms Smyth was shocked and unaware that the SRC had discussed her “medical condition” and made any decision on her working arrangements without her prior consent or an SRC request for approval note from the manager she had in 2014.  Ms Smyth had been issued a new employment contract for 1 year in July 2014 which did not mention that her 60% working arrangement was on medical grounds. Although traumatised from discussing with a stranger what had happened to her in 2013/2014 Ms Smyth submitted her application form.

On October 25th, 2019 Ms Smyth sent Ms Lyons an email outlining her dissatisfaction with the previous days telephone call.

On October 30th, 2019 Ms Lyon’s replied by stating there was a “medical related request for reduced hours” held on SRC minutes in Ms Smyth’s HR file. In addition, she said IDA HR would require “further medical evidence that it was prudent” for Ms Smyth to be considered for a full-time post. Ms Smyth was completely dismayed and upset at being treated so badly by IDA HR.

On the same day Ms Doocey, asked Ms Smyth could she telephone her, Ms Smyth replied by email that she could and also stated that she was withdrawing her application form that she had submitted on October 24th due to IDA HR’s line of questioning re “further medical evidence” and their invasion of her privacy with regards to her period of absence in early 2014. During the 28-minute phone call Ms Doocey said, “IDA HR would not consider Ms Smyth for an interview unless she provided a “letter of comfort” from her doctor stating that she was medically fit to work full-time”. Ms Smyth replied that she was always capable of working full-time but did not want to in the interest of work life balance and did not need to financially. Plus, most importantly part-time working was her normal working pattern since 1998. In fact, by working 3 days per week every week she was working 4 extra days per month more than the job-sharing rota she had with Ms Power.  Ms Smyth also stated that her Consultant Psychiatrist had written 3 days per week on her return-to-work letter back in 2014 as it was her normal working pattern since 1998 of her own choice. Ms Smyth found the telephone call traumatic and a huge invasion of privacy to again have to discuss what had happened to her in 2013/2014.  Ms Smyth was at a loss as to why IDA HR would require another return-to-work letter some 5 years and 10 months after she had a 14-week absence from work.  As Ms Doocey and Ms Smyth could not agree on a way forward, Ms Smyth felt she had no option but to withdraw her application which had been submitted 6 days previously.

At this stage it should be noted that Ms Smyth’s skill set, length of service with IDA Ireland and in particular EBD, her knowledge of how the organisation works, her dedication to her work, her positive attitude and all-round general abilities would have placed her firmly as the top contender for the advertised Acting/Developmental Level C post in EBD.

On November 12th, 2019 Ms Smyth emailed Ms Doocey, to remind her of her request/email dated 30/10/2019 to have a copy of the SRC minute.  In addition, Ms Smyth also asked for a letter confirming what IDA HR required for Ms Smyth to be considered for interview for future full-time roles in IDA Ireland. 

On November 15th, 2019 the only other candidate that applied for the acting Level C post was successful.  Ms Smyth found that day distressing as she felt let down by IDA HR and their actions.  Also, her colleagues were asking why she did not get the job given her experience and knowledge of the division.  In addition, the successful candidate had a physical injury at that time and IDA HR did not ask that person for a “letter of comfort” before being interviewed.

On November 18th, 2019 19 days later, Ms Smyth received a copy of the SRC minute from Ms Doocey.  It had no mention of Ms Smyth being granted a 60% working week on medical grounds and was mostly about how Ms Power’s 50% of the role was going to filled. On November 20th, 2019 Ms Smyth emailed Ms Doocey saying the SRC minute was very different to what had been said verbally and in email by her and Ms Lyons.  

On November 27th, 2019 Ms Smyth’s then Level F manager, Mr Rory Mullen asked Ms Smyth to organise a team day to be held in January 2020.  He had previously said that the new Level C would be taking the lead on this. Ms Smyth challenged him, and Mr Mullen backed down and said that the new Level C would be given the task. Mr Mullen then altered Ms Smyth’s reporting structure and had Ms Smyth report to a Line Manager rather than him.  In addition, in April 2020 Mr Mullen refused to write a comment on Ms Smyths yearly performance review as he said she had an on-going grievance with IDA Ireland.  He commented on all the other team members performance reviews except Ms Smyth.  These 3 incidents made Ms Smyth feel victimised and quite uncomfortable. 

On November 29th, 2019 18 days after the initial request, Ms Smyth received an email from Ms Doocey, in lieu of her requested letter.  In it Ms Doocey was still adamant IDA HR would require a letter from Ms Smyth’s doctor to be considered for full-time work. To this day Ms Smyth finds this request shocking considering Ms Smyth has worked part-time since 1998 of her own choice.

The actions of IDA Ireland and IDA HR since July 2019 (2 years and 7 months ago) have left SIPTU and Ms Smyth questioning IDA Ireland’s values in particular with regards to its people because of the disgraceful way they treated her.  SIPTU and Ms Smyth wonder is this sadly the permanent culture of IDA Ireland.

During 2020 Ms Smyth and SIPTU utilised the full IDA Ireland grievance procedure with an informal grievance meeting, a formal grievance hearing and an appeal of the formal grievance hearing decision to try resolve and rectify the disgraceful treatment by IDA HR of Ms Smyth. At each stage of the grievance procedure there was a feeling of “would it not be better for Ms Smyth to have just bowed to IDA Irelands demands and get a letter from her Consultant Psychiatrist to say she was fit to work full-time”. This further antagonised Ms Smyth as a mental health illness in early 2014 was being held against her some 5 years and 10 months later and that she was being victimised and stigmatised by her employer as a result.

The grievance procedure mechanisms where fully exhausted by September 2020.

In December 2020, July 2021, August 2021 and January 2022 IDA HR advertised 4 separate Acting and/or Permanent Level C roles throughout the organisation. Owing to Ms Smyth’s previous interactions with IDA HR in October 2019 and their refusal to interview her unless she provided them with a “letter of comfort” from her doctor to say she was medically fit to work full-time following her 14-weeks absence in 2014, Ms Smyth would have been prohibited by IDA HR from applying for these posts.

In summary Ms Smyth missed the opportunity to apply for 5 Level C roles in IDA Ireland since her grievance commenced in October 2019.   This has been a very difficult time work wise for Ms Smyth. 

Additional Information

With reference to the Department of Public Expenditure and Reform circular titled: Arrangements for Paid Sick Leave File Reference: DPE056/046/2014.  When Ms Smyth returned to work in May 2014 following her 14-week absence IDA Ireland did not adhere to the procedure detailed in “Item 4.1 Return to work interview” (See extract below), Ms Smyth had no return-to-work interview whatsoever.

In October 2019 IDA HR did not adhere to “Item 5.8 Sick Leave Limits – Promotion/Higher Duties Allowance”. (See extract below), IDA HR did not examine Ms Smyths sick leave over the previous 4 years which was exemplary instead they examined Ms Smyths 14-week absence in 2014 which was 5 years and 10 months previous.

As additional information Ms Ronna Doocey, Head of HR and OD, IDA Ireland approached Ms Smyth in 2015 and offered her a full-time Level B role in the Southeast Regional Office in Waterford.  Ms Smyth finds this contradictory as the same person refused Ms Smyth an interview for an Acting/Developmental Level C role in October 2019 unless she provided IDA HR with a “letter of comfort” from her doctor to say she was medically fit to work full-time following her 14-week absence in 2014.    To further add to this contradiction, Ms Doocey said the following in an email on November 25th, 2019 “IDA is open and willing to engage with you in relation to potential 5-day week roles in the organisation. However, where an employee is seeking to increase their working hours from what has been medically assessed as their current capacity, IDA from a duty of care perspective require an updated medical assessment to support the increase requested”.  Ms Smyth was in Ms Doocey’s words not” medically assessed to work at her current capacity” by any doctor.  Ms Smyth finds the choice of words here to be degrading in a society where there is supposed to be no stigma concerning people with mental health issues.

 It should also be noted that Ms Smyth’s Consultant Psychiatrist, Dr Stephen McWilliams, St John of God Hospital, Stillorgan has stated that he is absolutely aghast that an employer could treat one of his patients in this terrible way.  He acknowledges that he put a 3-day working week on Ms Smyths return to work letter in 2014 as it was her normal working pattern with IDA Ireland since 1998. 

Furthermore, Ms Smyths return-to-work letter from her Consultant Psychiatrist in 2014 was superseded by another return-to-work letter in 2017 from her Consultant Gynaecologist following a 12-week absence.) Why didn’t IDA HR ask for new “fit to return to work” letter from her Consultant Gynaecologist in October 2019? Also, when Ms Smyth returned to work in 2017, she was not referred to Occupational Health or a Chief Medical Officer by IDA HR.

Acts of Discrimination

It is our position that IDA Ireland enforced conditions on Rebecca Smyth that are discriminatory, in that she was required to provide a letter of comfort before she would be allowed to apply for a promotional position. Four such promotions occurred within the timeframe of the within complaint in December 2020, July 2021, August 2021 and January 2022.

But for, the conditional requirements that Rebecca Smyth provide a letter of comfort because of her disability, that exists, existed but no longer exists and or is imputed on Rebecca, she was prevented from applying for these positions.

We would ask that occurrences of the same type of discrimination that fall outside the time limit be considered also:

Both s.77(5) and s.77(6A) of the Act provide for circumstances in which acts of discrimination that occurred outside the normal time limit can nonetheless be relied upon where they form part of what is conveniently referred to as continuing discrimination.

Section 77(5)(a) of the Acts provides:

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

Section 77(6A) of the Acts provides:

For the purposes of this section

(a) discrimination or victimisation occurs  

(i)  if the act constituting it extends over a period, at the end of the period,

(ii) [not relevant]

(iii) [not relevant]

It is our position that IDA Ireland maintained and kept in force a discriminatory regime, rule, practice or principle which extended over time up to the dates referred to above.

In McCamley v Dublin Bus EDA164, this matter was considered by the Labour Court the relevant passage quoted by the Court from Ann Hurley v Cork VEC EDA1124 is as follows:

Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] ILRM 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. [Our Emphasis added]

The Law

Section 6 of the Employment Equality Acts which defines discrimination:

(1)       For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where:

(a)     A person is treated less favourably than another person is, has been or would      be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(2)       As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are… (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”).

It is our position that IDA Ireland discriminated and or caused acts of discrimination on the disability ground, that exists, existed but no longer exists and or is imputed on Rebecca Smyth. This discrimination as stated earlier is the enforced condition that she provide a letter of comfort before she would be considered for a promotion.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination: “Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”. 

This requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred.  It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

In Mitchell v Southern Health Board [2001] ELR201, the Labour Court emphasised that in the first instance, the Claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.  It continued: “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.” 

In Melbury v Valpeters EDA0917, the Labour Court elaborated that Section 85A: “Provides for the allocation of the probative burden in cases within its ambit.  This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Labour Court in Director of Public Prosecutions v Robert Sheehan EDA0416, found that: “In order to shift the probative burden it is not necessary for the Complainant to adduce direct evidence of discrimination on either the gender or the age ground. 

It is submitted the Complainant has established a prima facie case of discrimination on the disability ground and the burden of proof now shifts to the Respondent.

It is our position that the Complainant satisfies the requirements to establish a prima facie case in accordance with her obligation under the Act and case law precedents as set out above. The facts of the case established above shows that there has been discrimination on the ground of disability. We would respectfully suggest that the burden of proof unequivocally shifts to the Respondent, therefore in accordance with 85A of the Act it is up to the Respondent to prove otherwise.

Compensation for the effects of discrimination

Regarding compensation, we would seek to rely on the case of Marie O Shea v Health Services Executive ADJ-00024740, where compensation for the effect’s discrimination is set down and the rationale is explained on how the Adjudicator arrived at the award that is just and equitable and to provide a real deterrent.

“section 82(4) provides:

“The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be

(a)       in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of:

(i)        104 times the amount of that renumeration, determined on a weekly basis,

(ii)       104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(ii)       €40,000.”

Applying the terms of sub section (4) (a)(ii), the amount to be paid to the Complainant is 104 times the nett weekly rate of pay calculated based on the information provided by the Complainant in the complaint form taking into account the information provided by the Respondent in so far as this is applicable. The figure of €1250 per fortnight multiplied by 26 pay periods amounts to €32500 or €625 per week. The figure of €625 multiplied by 104 amounts to compensation of €65000. It is not for the Adjudication Officer to calculate actual gross weekly loss in any case-that responsibility lies primarily with the Complainant and this decision relies on the available information.  That said, the amount of compensation is considered fair and appropriate compensation for the effects of the discrimination in all the circumstances of the case.

The amount of the award is also justified by reference to Sabine Von Colson and Elisabeth Kamann -v- Land Nordhein-Westfalen where it is said” If a member state chooses to penalize breaches of that prohibition by the award of compensation, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as for example the reimbursement only of the expenses incurred in connexion with the legislation adopted in connexion with the application…’ That Judgement was issued in 1984 and it is well established as a reference point for the awarding of compensation in cases where discrimination is found and utilised for the purposes of having a persuasive effect on the Respondent, in this case a public body, to take all necessary steps to apply the legislation and to prevent discrimination into the future.”

PRELIMINARY OBJECTION

By way of preliminary objection, the Respondent is applying to have the claim under the EEA dismissed for being lodged out of time.

For the WRC to have jurisdiction to hear a complaint, it must be lodged within the statutory time frame. Section 41(6) of the 2015 Act provides as follows:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has not been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

The EEA contains a similar provision at s.77(5)(a).

This six-month time limit can be extended to 12 months per s.41(8) which provides as follows:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within the period was due to reasonable cause.”

The EEA contains a similar provision at s.77(5)(b).

The Complainant lodged her claim under the EEA on 30th March 2021 and therefore the cognisable six-month period covered by her claim runs from 30th September 2020 until 30th March 2021 which period can be extended to 12 months for reasonable cause whereby the cognisable period would be 31st March 2020 to 30th March 2021. However, the conduct the subject matter of the EEA claim herein relates to a promotional opportunity advertised in October 2019 and in respect to which the Complainant submitted an application on 24th October 2019 which she then withdrew on 30th October 2019 on the alleged basis that she was discriminated against by the requirement to produce medical confirmation that she was fit to work more than three days per week. Therefore, the conduct the subject of the EEA claim herein occurred in October 2019 which is over 12 months before the lodging of the claim and therefore no extension of time is available in this case. In respect to her subsequent grievance, the Labour Court has consistently held that utilisation of an employer’s internal procedures cannot be used to circumvent statutory time limits in respect to the referral of a complaint to the WRC: Charity Services Galway v. Kieran O’Toole EDA177, Business Mobile Security Ltd t/a Senaca Limited v. McEvoy EDA1621 and SSE Renewables (Ireland) Ltd v. Tymon UDD1956.

The Complainant’s EEA claim therefore is entirely out of time.

The Complainant has sought to argue that she is suffering ongoing discrimination by reference to subsequent job applications including one advertised in December 2020 (as well as other job applications that post-date her EEA claim to the WRC). This argument is unsustainable and misconceived the Complainant did not apply for the position advertised in December 2020 or any other positions and as a consequence she cannot rely on it (or any positions for which she did not apply) as an alleged incident of ongoing discrimination. There is no statutory basis under the EEA for a complainant to pursue a hypothetical and/or speculative claim. In Kotarzewksa v. Department of Justice and Equality DEC-E2016-100, the Adjudication Officer confirmed he could “not deal with hypothetical situations.” The Complainant has not identified any alleged contravention of the EEA that occurred within either the cognisable six month or extended 12-month period and therefore the WRC has no jurisdiction to hear and determine her claim under the EEA.

Without prejudice to the foregoing, the Respondent’s substantive response to the claims is set out below.

The basis of the Complainant’s claims is essentially that in respect to a promotional opportunity that arose in October 2019, for which she originally applied but then withdrew her application, she was discriminated against on the disability ground by the Respondent’s requirement that in order for her to be considered for this promotion she was required to produce medical confirmation of her fitness to work more than three days per week.

The Respondent strenuously disputes the Complainant’s claims and its defence is set out in detail below. In particular however, it should be noted that it is the Respondent’s position that the Complainant’s submissions are disingenuous and misleading. The fact is that in May 2014, after a period of long-term sick leave, the Complainant returned to work on a three-day week based on medical certification provided by her at that time. It is noted that in her submissions however, the Complainant has failed to disclose the 14th May 2014 letter from her Consultant Psychiatrist, Dr. Stephen McWilliams, underpinning the actions of the Respondent in this case. In the Complainant’s submissions it is declared that the May 2014 letter “deemed her fit to return to work”. In fact, however, the letter stated as follows:

“Dear Sir/Madam,

This is to confirm that the above named patient is under my care. She is fit to return work from 19/5/14 on a 3 day week.

Yours faithfully.”

The Complainant’s submissions therefore make no reference to the fact that the Complainant was actually only certified fit to return to work on a three-day week.

The incontrovertible fact in this case is that since her long-term absence in 2014 the Complainant has only been certified fit to work on a three-day week. No subsequent medical evidence has been furnished by the Complainant confirming her fitness to work more than three days per week. In order to increase her hours therefore, the Respondent was (and remains) obliged to obtain medical confirmation that the Complainant was (and is) fit to do so. Her baffling and unreasonable refusal to obtain such certification has prevented her from being promoted. This unfortunate situation is entirely within her control to change.

Further, in respect to the claim under the EEA, a preliminary objection will be made to the effect that this claim is out of time on the basis that the contravention complained of occurred in October 2019 being not only outside the six month cognisable period covered by the claim but also outside the 12 month period by which the time limit for submitting the claim could be extended for reasonable cause. This is addressed in more detail below.

In respect to the conflicts of facts that occur in this case (of which there are many) these are addressed hereunder where relevant. As the Complainant’s submissions however include reference to many issues that do not appear to be relevant to the claims to be adjudicated upon, these are not addressed herein. However, this should not be taken as the Respondent’s acceptance of the Complainant’s version of such matters.

RELEVANT FACTS

Background

The Complainant was appointed to Forfás as a fulltime and permanent member of staff with effect from 28th October 1996. The Complainant’s offer of appointment and 1996 contract of employment were available at the hearing.(Until its dissolution in 2014, Forfás was the legal entity by which staff were employed to work in various organisations including the Respondent). With effect from 20th January 1999 the Complainant transferred to the Respondent where she was promoted to a job-sharing position based in Waterford. The transfer memo and 1999 contract of employment were available. From the contract it can be seen that the Complainant was employed at Level 6 (equivalent to the current Level B) in the Waterford Office. The Complainant worked in the Emerging Business Division.

The Complainant’s job-sharing arrangement came to an end in September 2013 when her job-sharing partner tragically passed way. The Complainant then went out on sick leave from January 2014 until May 2014. The Head of HR, Ronna Doocey, was in contact with the Complainant during this period of absence.

Prior to her return to work, the Complainant provided a letter from Dr. Stephen McWilliams, Consultant Psychiatrist, confirming her “fit to return to work from 19/05/14 on a 3-day week.”

On 15th May 2014 the Complainant sent an email to Ronna Doocey and her then line manager Barry O’Dowd stating:

“I saw the doctor yesterday and he has given me a letter saying I am alright to return to work next week. I plan on working a three-day week

– Monday, Tuesday and Wednesday with a day in Dublin as required on the doctor’s recommendation, hope that’s ok with both of you,”

At a meeting on 23rd June 2014, the Staff Resources Committee (“the SRC”), discussed the Complainant’s return to work and the resource issue arising from the untimely death of the Complainant’s job-sharing partner. The SRC comprises three people: the CEO, the Executive Director and the Head of HR and is responsible for discussing all staffing and resource needs within the Respondent including any proposed changes to an employee’s contractual hours. A redacted copy of the minutes of the 23rd June 2014 meeting were produced.In respect to this matter, the minutes record as follows:

“The Committee noted that Rebecca Smyth had been certified to return to work form sick leave on the basis of three days per week with effect from 19th May 2014.”

The Complainant duly returned to work on a three-day week based in Waterford at Level B in the Emerging Business Division and this arrangement was confirmed by an updated contract of employment dated 30th June 2014 and signed by the Complainant on 7th July 2014. The contract provides that it was with effect from 1st July 2014 with a review after 12 months. (It is not however a one-year contract as incorrectly described by the Complainant in her submissions as that contract does refer to the terms and conditions in the Complainant’s permanent contract). Clause 5 of this contract reserves the employer’s right to re-assign the Complainant to a fulltime position and also provides that the Complainant should notify the employer in writing should she wish to return to fulltime working in which case the employer will endeavour to assign her to a suitable fulltime position.

The Complainant’s return to work in mid 2014 on a three-day week was clearly grounded on the medical certification to this effect as furnished by the Complainant.

At the time of the alleged occurrence of the incidents the subject of the Complainant’s claims herein, the Complainant’s Line Manager was Rory Mullen and her Divisional Manager was Eileen Sharpe. As stated, the Head of HR was Ronna Doocey and the HR manager was Jemma Lyons.

Complainant’s Application for Promotion in October 2019

In April 2019 the Respondent advertised a full time Dublin based Level C position in the Financial Management Division. The Complainant spoke to HR Manager, Jemma Lyons, about whether this position could be performed on a part-time basis and also from Waterford. By email of 25th April 2019, Jemma Lyons replied to the Complainant’s request by stating that she had looked into the role in more detail and that it was a fulltime role with no scope for it to be made part-time or relocated to any other location. The Complainant replied by email of 26th April 2019 expressing her disappointment and disagreement with this position.

In July 2019, it became apparent that another Level C position, this time in the Emerging Business Division (where the Complainant was working at Level B), was to become available on a fixed term basis to fill a vacancy arising from a temporary internal transfer to cover a maternity leave, i.e., for a period of 9-12 months, which would not have given the Complainant an automatic entitlement  to a permanent promotion. In conversation with her Divisional Manager, Eileen Sharpe, on 31st July 2019, the Complainant asked about availing of a redundancy package to which Ms. Sharpe replied that she did not believe there was funding available for such a package. She suggested however that the Complainant consider a promotion. Ms. Sharpe asked the Complainant if she would consider doing four days a week if promoted to the Level C role in the Emerging Business Division in response to which the Complainant confirmed she would. (Contrary to the claim made by the Complainant in her submissions however, Ms. Sharpe did not and could not have committed during this meeting to this fulltime role being performed on a four-day basis).

This position was formally advertised on 10th October 2019 as a fulltime role

In a conversation on 23rd October 2019, Eileen Sharpe confirmed to the Complainant that the role would be fulltime. Ms. Sharpe advised the Complainant however that if she were successful in competing for the role, she could then apply to the SRC to have it reduced to four days and that Ms. Sharpe would support any such application. Ms. Sharpe confirmed to the Complainant however that if it became a permanent position (as opposed to fixed term contract), it would be fulltime.

On 24th October 2019 the Complainant spoke to Jemma Lyons about her application for the role. Prior to this conversation, Ms. Lyons had mentioned to Ronna Doocey that the Complainant was considering applying for this role in response to which Ms. Doocey had told Ms. Lyons about the Complainant being on a three-day week on medical grounds. (Ms. Doocey had been in contact with the Complainant during her period of absence in 2014 and as Head of HR had been on the SRC which had discussed her return to work). Ms. Doocey asked Ms. Lyons therefore to inform the Complainant that she would need a letter from her doctor confirming she could increase her hours. In the conversation between Ms. Lyons and the Complainant on 24th October 2019, Ms. Lyons confirmed to the Complainant that she could apply to the SRC for the role to be performed on a four day basis if she were successful in her application. Ms. Lyons confirmed that this would need SRC approval. In light of her conversation with Ms. Doocey, Ms. Lyons then referred to the Complainant working a three-day week on medical grounds and advised her that if successful, the Complainant would also need to provide a doctor’s letter confirming she could work the increased hours. When the Complainant queried this, Ms. Lyons referred to the Respondent’s duty of care. The Complainant became extremely annoyed on hearing this. The Complainant then of her own accord proceeded to speak about her medical condition in some detail. It is categorically denied that Ms. Lyons asked the Complainant if she wanted to discuss her medical situation as alleged by the Complainant. (It is in fact concerning that in the Complainant’s submissions it is stated in respect to this phone call that “Ms. Lyons proceeded to ask Ms. Smyth would she like to discuss her medical condition” when in a subsequent conversation with Ronna Doocey and also in the course of the Respondent’s formal grievance process, the Complainant conceded that Ms. Lyons did not ask her about her medical condition). The Complainant further confirmed that she could obtain the medical letter requested. Ms. Lyons then brought the conversation back to the application and asked if the Complainant would like HR to arrange any interview preparation or coaching in respect to which the Complainant confirmed she did not as she had already arranged this privately herself.

After this conversation, the Complainant submitted her application and her application and cover email.

The following day (25th October 2019) the Complainant sent an email to Jemma Lyons concerning their conversation the day before. This email does not however accurately recount the discussion on the previous day. In this regard, the Complainant incorrectly stated in her email that Ms. Lyons had told the Complainant that she had a health issue that prohibited her from working full time. The Complainant stated that HR had a letter on file from St John of Gods hospital dated 14th May 2014 issued following a stay she had there after the death of her job-sharing partner. Notably, the Complainant also confirmed that she still visited her Consultant Psychiatrist in St. John of God twice a year and that she had been there that week. Ms. Lyons was completely taken aback by this email – by both its tone and its inaccuracy. She replied on 30th October 2019 wherein she confirmed that at no point had she indicated that the Complainant was prohibited from applying for the role. Her email continued:

“Given I had indicated the role was a full time position and it subsequently came to my attention within the confidence of the HR role that your part time work arrangement had been agreed on medical grounds, I was indicating that from an employer duty of care perspective we would require further medical evidence that it was prudent for you to be considered for a full time role. I was not aware, nor did I enquire about the nature of the medical reasons for your reduced hours.

There is no letter from St John of God on your HR file. The only reference on our files to a medical related request for reduced hours is held on SRC minutes, with no supporting personal documentation. Under the File Retention Policy, all sick leave records are destroyed after a four year.

I am delighted to hear you have been well. It is our duty of care to ensure that should your working hours increase to full time that this does not impact negatively on your health, which once again was the intention of my discussion with you.

I apologise if I have caused upset following our conversation last week, that was certainly not my intention. If you want to meet me to discuss any of the above, I'd be very happy to do that.”

The Complainant replied by email of 30th October 2019 stating that were many “discrepancies/discussion points” in Jemma Lyons’ email but upon which she did not elaborate at that point. She requested a copy of the SRC minutes referred to by Ms. Lyons.

In light of the Complainant’s reaction to the situation, on 30th October 2019 Ronna Doocey sent an email to the Complainant asking if she could speak to her. The Complainant replied by email on 30th October 2019 confirming Ms. Doocey could call her and then setting out her issues with Jemma Lyons’ email of 30th October 2019. In respect to Ms. Lyons’ email, the Complainant stated inter alia that she had never requested a reduction in her hours on medical grounds and that on her return to work in May 2014 she had submitted a letter to HR stating she would be working a three day week which was in line with her normal working arrangement with the increase in her working days from 20 to 24 per month. She also formally withdrew her application for the Level C role citing (a) that it was now clear the role was full time (implying that this was contrary to what Eileen Sharpe had originally told her) and (b) on account of the poor treatment she had received from HR.

Ronna Doocey then telephoned the Complainant to confirm that no confidential information was shared with the SRC and that the SRC discussion was about the Complainant not being able to return other than on a three-day week as per the medical advice. Ms. Doocey explained that the request for a medical certificate arose from the employer’s duty of care. She encouraged the Complainant to reconsider withdrawing her application. However, the Complainant was insistent on this issue. Ms. Doocey asked the Complainant if she could get a letter from her doctor confirming she could work fulltime but the Complainant refused to look for this. The Complainant repeated several times that she did not want to work fulltime. During this conversation, the Complainant did however confirm that Jemma Lyons had not asked her about her medical condition in their conversation on 25th October 2019 (contrary to her submissions as stated above).

The following day, 31st October 2019, Eileen Sharpe telephoned the Complainant wherein Ms. Sharpe apologised for any part she had played in the Complainant’s application withdrawal. This conversation has been mischaracterised by the Complainant in her submissions as Ms. Sharpe criticising the actions of HR. This is not the case.

By email of 12th November 2019 the Complainant sought a copy of the 23rd June 2014 SRC meeting minutes and requested a letter of comfort confirming what would be required by HR for her to be considered for a fulltime position. The minutes were sent to the Complainant by email of 18th November 2019 and the Complainant replied by email of 20th November 2019 stating that the minutes were very different to what she had been told by Jemma Lyons. She did not explain this further.

By email of 29th November 2019Ronna Doocey confirmed to the Complainant what HR would require for the Complainant to move to a fulltime role as follows:

“I refer to your recent request for confirmation as to what IDA requires should you wish to undertake a 5-day week role in the organisation, an increase in working days from your current arrangement of three days per week.

In May 2014 on your return from sick leave, IDA accommodated you working a 3-day week based on a medical assessment provided at the time. You have continued working on a 3-day week basis since that time and you have never previously indicated your desire to review this arrangement.

We apologise if this has caused any upset Rebecca, however IDA takes its responsibilities for the health, safety and welfare of employees very seriously and accordingly it is necessary for IDA to make reasonable enquiries to determine if you are medically fit to increase your working time from 3 days to 5 days a week.

IDA is open and willing to engage with you in relation to potential 5-day week roles in the organisation. However, where an employee is seeking to increase their working hours from what has been medically assessed as their current capacity, IDA from a duty of care perspective require an updated medical assessment to support the increased requested.

We are of the view that this is not an unreasonable request and our ultimate aim is to protect you in your ongoing employment with IDA.”

Complainant’s Grievance.

On 10th January 2020 the Complainant lodged a grievance relating to the Complainant’s application for the Level C role complaining therein that she had been discriminated against under the EEA. No grounds of discrimination were identified in the grievance. The Complainant’s “resolution requirements” were set out in the grievance as follows:

1.     An apology from HR “for their shambolic treatment of Rebecca and written acknowledgement of her 26 years exemplary service to the IDA organisation as evidence from Rebecca’s yearly performance reviews.”

2.     Removal of any mention that the Complainant is only fit to work three days per week from her HR file.

3.     Financial compensation “following the denial of the chance of promotion.”

Ronna Doocey held an informal grievance meeting on 4th February 2020 at which the Complainant was in attendance with Jay Power from SIPTU. This meeting was unsuccessful in dealing with the Complainant’s grievance however. As the Complainant refused the subsequent offer of mediation made by Ronna Doocey as confirmed by Jay Power’s email of 19th February 2020, the matter then proceeded to be dealt with under the formal process.

Formal Grievance Process

John Nolan, Secretary and Manager Corporate Services, (and a qualified solicitor) conducted the formal grievance process. An amended grievance was submitted on behalf of the Complainant on 26th February 2020.

The first formal grievance meeting took place on 16th June 2020.

John Nolan interviewed Eileen Sharpe on 19th June 2020 and Jemma Lyons, Rory Mullen and Ronna Doocey on 30th June 2020.

The second formal grievance meeting occurred on 8th July 2020.

By email of 10th July 2020Jay Power added further matters to be addressed as part of the grievance which included:

1.      That in 2016 Ronna Doocey had asked the Complainant if she would consider taking up a fulltime position that had become available which offer the Complainant had declined but in respect to which there had been no mention of medical evidence of the Complainant’s fitness to take up a fulltime role being required.

2.      That in 2019 when the Complainant had bought expensive hearing aids, her Manager Rory Mullen had asked her to revert to a fulltime position as this would help pay for them again without any discussion about her medical fitness to work fulltime.

3.      That there was an inconsistency between what Ms. Doocey had said regarding the SRC discussion of her return to work in June 2014 during the informal meeting on 4th February 2020 on the one hand and in her statement to John Nolan in the course of his interview with her on the other.

Ronna Doocey’s response to these additional issues was forwarded by John Nolan to the Complainant and Jay Power by email of 21st July 2020 and the Complainant’s responses to Ms. Doocey’s comments were provided to Mr. Nolan on the same day.

Ronna Doocey’s response was as follows:

a.     Regarding the 2016 incident, Ms. Doocey did not recall it but nor did she dispute it. Given the Complainant’s response was to turn down the offer, Ms. Doocey suspected that she did not pursue the matter any further but that if the Complainant had said yes to the offer, then a similar note from her doctor would likely have been requested.

b.     In respect to the 2019 incident, Ms. Doocey noted that the Complainant’s line manager Rory Mullen would have had no knowledge of the basis for the Complainant’s three-day working week and therefore would have had no basis to ask her to provide a doctor’s note. Ms. Doocey noted however that had the matter gone further and had the Complainant confirmed that she was returning to work on increased hours, they would likely have sought a doctor’s note at that juncture.

c.      Ms. Doocey did not understand the point being made regarding the SRC discussion on the Complainant’s return to work but noted that the SRC would discuss the fact that someone was on ongoing long-term sick leave and would discuss the situation where someone was returning from sick leave. She confirmed however that the SRC would not discuss the nature of the illness or the details of the illness.

The grievance outcome decision was issued on 24th July 2020 wherein the Complainant’s grievance was not upheld. It is submitted that this decision is detailed and well-reasoned. In respect to the meaning of Dr. McWilliams’ 14th May 2014 letter, the Complainant had maintained that this letter stated she was fit to return to work on a three day week only because that was the most she had worked at that time and it did not mean she was only fit to return on a three day week. However, Mr. Nolan found that the clear implication of the 14th May 2014 letter was that Dr. McWilliams was not certifying the Complainant as fit to work more than three days a week. He further found that even if the Complainant’s understanding of the letter was correct, it was reasonable for HR to interpret it to mean that Dr. McWilliams was not certifying the Complainant as fit to return to work for more than three days per week for medical reasons.

In respect to the SRC minute of 23rd June 2014 and the Complainant’s position that this did not state that the Complainant was granted a three-day working week on medical grounds, Mr. Nolan noted that in fact it clearly stated that the Complainant had been certified to return from sick leave on the basis of three days per week with effect from 19th May 2014. He found further that this clearly implied that the Complainant had not been certified as fit to return for any more than three days per week for medical reasons.

John Nolan concluded that HR had acted in good faith and had been motivated solely by a reasonable concern that it would be safe for the Complainant’s health to work on a fulltime basis. He found that the Complainant’s decision to withdraw her application on 30th October 2019 was entirely voluntary. He concluded that the Complainant had not been discriminated against as alleged in her grievance.

Complainant’s Appeal against Grievance Outcome

The Complainant appealed against the grievance outcome which appeal was determined by Leo Clancy (former Divisional Manager). The grounds of appeal were:

1.      John Nolan had not acted impartially in that:

•       He had not asked what resolution the Complainant was seeking in respect to her grievance.

•       He had asked the Complainant why she did not obtain a medical report confirming she could work fulltime.

2.      John Nolan had not mentioned the Complainant’s contract in the grievance outcome notwithstanding this was discussed at length especially the paragraph stating the Complainant could return to fulltime working at any stage.

The grounds of appeal were confirmed by Leo Clancy with the Complainant and her SIPTU representative by his email of 7th September 2020.

In the course of the appeal, the Complainant submitted her return to work letter of 18th April 2017 which the Complainant argued should be the applicable letter on her HR file and that this letter deemed her fit to work. (This letter however simply confirmed that the Complainant “hoped” to return to work on 15th May 2017 and did not address at all the number of days per week for which the Complainant would be fit to work. It could not be relied upon therefore to supersede the medical advice contained in the 14th May 2014 letter certifying the Complainant fit to work three days per week).

The appeal meeting took place on 9th September 2020 and the minutes of this meeting were sent to Jay Power on 19th September who confirmed the minutes were essentially accurate (subject to the correction of a year from 2016 to 2017).

John Nolan responded to the grounds of appeal by email of 9th September 2020.In this regard Mr. Nolan stated:

a.     Regarding the allegation he was not impartial:

i.     The remedies sought were set out clearly in the Complainant’s formal statement of grievance and at the hearing on 16th June 2020, it was confirmed that these were the only remedies being sought. It would have been premature to discuss these remedies unless and until the substantive issue had been determined in the Complainant’s favour.

ii.    The question regarding why the Complainant decided not to seek a letter from her doctor in response to the HR request was a necessary and entirely reasonable question to try to gain a better understanding of her position.

b.     Reference to the wording of the Complainant’s contract of employment was not included in the decision as after due consideration he did not regard it as relevant to her grievance as the points raised by the Complainant regarding the wording of the contract had no relevance to the question of whether or not it was reasonable for HR in the particular circumstances to ask the Complainant to provide confirmation from her doctor that she was medically fit to work on a fulltime basis.

By email of 10th September 2020 Jay Power provided comments on behalf of the Complainant in respect to John Nolan’s decision.

The appeal outcome was issued on 11th September 2020 wherein the Complainant’s appeal was unsuccessful. In this regard Leo Clancy concluded that John Nolan was impartial and that he had considered the relevance of the contract of employment in arriving at his decision and although the contract could have been mentioned in the decision, the absence of such a mention did not prejudice the decision made.

The Complainant has remained employed at a Level B 60% position and has made no further applications for a promotion.

THE COMPLAINANT’S CLAIMS

The EEA

Discrimination is defined at s.6(1) of the EEA as occurring where a person suffers less favourable treatment compared to another person on the basis of any of the specified grounds and disability is included at s.6(2)(g) of the EEA.

In her claim form regarding her EEA claim, the Complainant claimed she suffered discrimination in respect to promotion and that she was victimised. The facts supporting the alleged discrimination concerning promotion have been set out in her submissions. However, no factual basis supporting a claim for victimisation has been set out and as a consequence there is no grounds for upholding such a claim and it should be dismissed.

In respect to her claim for discrimination, the burden of proof provisions contained at s. 85A of the EEA provide that to make out a prima facie claim, the Complainant must establish facts from which it may be presumed that there has been discrimination and it is only after doing so, that the burden shifts to the Respondent to prove the contrary.

In Mitchell v. Southern Health Board [2001] ELR 201 the Labour Court referred to the evidential burden that must be met by a complainant (in a claim of gender discrimination but which now is equally applicable to all discrimination claims) in the following terms:

“It is necessary, however, to consider the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The first requirement of Article 4 of the Directive is that the complainant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates 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 appellant to prove that there was no infringement of the principle of equal treatment.”

Therefore, it is clear that the Complainant must not only establish the primary facts upon which she is relying but must also establish that those facts are of sufficient significance to raise an inference of discrimination.

It is the Respondent’s position that the Complainant has failed completely to make out any prima facie case. The Complainant’s case appears to be premised on an alternative set of facts whereby she had not in fact been certified fit to return to work on a three-day week. The following are however the relevant facts in this case:

a)      The 14th May 2014 letter from Dr. McWilliams certified the Complainant

“as fit to return to work…on a 3-day week.”

b)     The Complainant’s email to Ronna Doocey and Barry O’Dowd of 15th May 2014 confirmed she was planning to return to work on a three-day week “as required on the doctors (sic) recommendation.”

c)      The 23rd June 2014 SRC minute recorded that the Complainant “had been certified to return to work from sick leave on the basis of three days per week with effect from 19th May 2014.”

The Complainant case is based on her advancing an understanding of the above facts that is incorrect, inherently inconsistent and illogical and could not possibly provide a justifiable basis for the Respondent to disregard the fact that to date the Complainant has only been certified fit to work on a three day per week basis.

The Complainant’s attempt in her submissions to explain Dr. McWilliams’ report by making an entirely hearsay statement lacking any probative value whatsoever to the effect that he allegedly “acknowledges that he put a 3-day working week on Ms Smyths (sic) return to work letter in 2014 as it was her normal working pattern with IDA Ireland since 1998” will be strenuously challenged. Firstly, if the Complainant wishes to rely on any evidence from Dr. McWilliams he will need to attend and give evidence on oath and secondly regardless of what he says he meant, the letter is unambiguous and if he meant something else – that is what he should have written.

The Complainant’s reliance in her submissions on an incident from 2016 whereby she was asked by Ronna Doocey if she would take up a fulltime role that had become available but was not asked for medical certification confirming she was fit to work fulltime is misconceived. The Complainant refused to consider the role and as a consequence there was no requirement for her to confirm her fitness to work increased hours. Such a requirement would only arise after the Complainant had indicated she would consider moving to the fulltime role.

The Complainant’s description in her submissions of her fitness to work certification after a 12-week absence in 2017 as superseding Dr. McWilliams’ 14th May 2014 letter is also misconceived. In 2017, the Complainant returned to her normal three-day week without any change to her hours of work. The 2017 letter did not address at all the number of days per week for which the Complainant would be fit to work. Therefore, her return to work in 2017 was in accordance with the 2014 medical advice and consequently there was no question of the 2017 certification superseding the 2014 medical advice.

In respect to the Complainant’s submissions, the following contentions made on her behalf are specifically denied:

a)      The Complainant’s claims that her period of sick leave for clinical depression was “used against her” by the Respondent and/or that she has been discriminated against on the basis of a current or previous experience of mental health issues are denied. As stated above, these claims appear to be made in disregard of the actual facts.

b)     The Complainant’s claims that the Respondent has prohibited the Complainant from applying for promotion and/or that the Complainant had “no option” but to withdraw her application for the promotion in October 2019 are denied. At all times the Complainant was encouraged in her promotion application and supported in her desire to apply for this fulltime position to be reduced to four days per week. The Complainant could have complied with the reasonable request made by HR to furnish a medical certification to the effect that she was fit to work fulltime. This matter was and remains entirely with the power of the Complainant to address.

On the basis that the unequivocal medical evidence supplied by the Complainant only certifies her fit to work three days per week, in order to increase these hours, the Complainant is required to provide medical evidence of her fitness for same.

THE INDUSTRIAL RELATIONS ACTS

The Complainant’s claim under the IR Act overlaps with her claim under the EEA and therefore the Respondent’s defence to the substantive claim as set out above is relied upon equally here. It is the Respondent’s position therefore that there is no basis to uphold this claim of a trade dispute.

CONCLUSION

By way of a preliminary objection, the Complainant’s discrimination claim should be dismissed for being out of time in circumstances where there is no alleged incident of discrimination being relied upon within the six month cognisable period or 12 month extended time limit. The only identified incident of alleged discrimination occurred in October 2019 being over 12 months prior to the lodging of the EEA claim herein on 30th March 2021 and therefore the WRC completely lacks jurisdiction to hear this claim. In so far as the Complainant has sought to argue that she is suffering ongoing discrimination by reference to subsequent job applications including one advertised in December 2020 (as well as other job applications that post-date her EEA claim to the WRC), this argument is unsustainable and misconceived in circumstances where the Complainant made no further application or a promotion. The Complainant must base her case on a specific incident of alleged discrimination and cannot pursue a hypothetical or speculative claim.

Without prejudice to the Respondent’s position that the EEA claim is out of time and/or in response to the IR Act claim, it is submitted that the Complainant has provided no factual basis to support a claim of victimisation and has failed to make out any prima facie case of discrimination. In respect to the discrimination claim, it is the Respondent’s position that it has acted lawfully, fairly and reasonably at all times and the Complainant has not established facts of sufficient significance from which it could possibly be presumed she had been discriminated against on the disability ground. In this respect, the Respondent has acted on the basis of the only medical advice it has received since the Complainant’s return to work after a period of long-term sick leave in 2014 as contained in the 14th May 2014 letter from her Consultant Psychiatrist Dr. McWilliams whereby he certified her fit to return to work on a three-day week. No updated certification has ever been provided. It is rather the Complainant who has adopted an unreasonable and indefensible position by her inexplicable refusal to provide medical confirmation of her fitness to work more than three days a week in these circumstances.

Furthermore, acceding to the Complainant’s demand as made in her submissions would require the Respondent to permit the Complainant to work fulltime contrary to the only medical evidence available to the Respondent which would be utterly reckless of the Respondent and leave it entirely exposed if it ever transpired that the Complainant was not in fact fit to work increased hours.

It is submitted that based on the foregoing the Complainant should not succeed in respect to her any of claims herein.

I have fully considered the preliminary objection raised by the Respondent representative and accept the arguments presented. The complaint is out of time and therefore I have no jurisdiction to consider the matter further.

Employment Equality Act, 1998.