ADJ - 00037826

Worker

Employer

Anonymised Parties

An employee

A State Agency

Representatives

Jay Power SIPTU

Kiwanna Ennis BL instructed by Rachel Kennedy , Addelshaw Goddard (Ireland) LLP

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA – 00039920 – 001.

18/09/2020

The employee commenced employment with the employer in 1998.

This complaint was received by the Workplace Relations Commission on 18th September 2020.

A comprehensive submission was made on the employee’s behalf. A summary of this submission is contained in ADJ – 00029882.

A comprehensive submission was made on the employer’s behalf. A summary of this submission is contained in ADJ – 00029882.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

On 10/10/2019 theemployer advertised a full-time Acting/Developmental Level C role for 9 months duration (ended up 14 months duration) in EBD, the division employee works in since its inception in 2010. On 24/10/2019 the employee submitted her application for the full-time Acting/Developmental Level C role in EBD. On 25/10/2019the employeereceived a phone call from the HR and OD Manager, who informed the employee that she had been made aware by the Head of HR and OD that the employee had a medical condition that prevented her from working full-time. The employee replied by email on 25th October stating how unhappy she was with the HR Manager bringing her medical history into the matter of her application. The employee included some of the detail of her previous health problem in this email. In the final paragraph of this email she states that she hugely values her work life balance and will never work full time.

The HR Manager 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 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 the Regional Manager had originally told her) and (b) on account of the poor treatment she had received from HR.

The Head of HR and OD then rang the Complainant to explain 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. The Head of HR and OD 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 the HR Manager had not asked her about her medical condition in their conversation on 25th October 2019.

I note that the both the HR Manager and the Head of HR and OD have both stated that they were acting out of a Duty of Care for the employee in requesting a medical certificate stating that the employee was fit to work five days per week. The Safety, Health and Welfare at Work Act, 2005 places such a duty on all employers. 

In the instant case the employee’s representative has indicated that the employee was prevented from applying for four positions after the October 2019 job advertisement: 

“In December 2020, July 2021, August 2021 and January 2022 HR advertised 4 separate Acting and/or Permanent Level C roles throughout the organisation. Owing to the employee’s previous interactions with 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, the employee would have been prohibited by HR from applying for these posts”. 

This statement is hypothetical. When all documents furnished are read it quickly becomes obvious that the employee had no intention of working full time 

By email dated 25/10/2019 to the HR Manager the employee states “I hugely value my work life balance and will never work full time”. 

In the report on the Grievance Meeting held on 4th February 2020 (page 2, first paragraph) the employee (name redacted) stated that she never wanted to work full time in an organisation as toxic as XXX (name redacted). Again, in the second paragraph the employee stated that she never intended working full time and did not need to financially. 

At a resumed initial grievance hearing on 16th June 2020 the employee and her representative when asked to identify which of the various grounds for discrimination set out in legislation she wished to rely on, refused to specify any one ground. The representative stated that the grievance was about discrimination in general including in particular that the employee had been discriminated against because of a previous medical condition, had been discriminated against on grounds of gender and by the alleged behaviour of her Department Manager. 

Section 1 – 04 of Employment Equality Law (Publisher, Round Hall. Authors, Marguerite Bolger, Claire Bruton and Clίona Kimber) defines discrimination as follows:

“The identical treatment approach can be seen in many jurisdictions that have enacted legislation incorporating a general principle of equality.  In Ireland this approach is apparent in the Employment Equality Acts 1998-2011 (“Employment Equality Acts”) where discrimination is defined as less favourable treatment on any of the protected grounds, namely gender, civil status, family status, sexual orientation, race, age, disability, or membership of the Traveller Community.  In Britain the influence of this model of equality can be seen from the first pieces of equality legislation.  The Sex Discrimination Act 1975 s.1(1), for example, provides that “a person discriminates against a woman if … on the ground of her sex he treats her less favourably than he treats or would treat a man”.

It is strange that the employee’s representative was reluctant to specify the grounds of alleged discrimination.

The employee had a formal grievance hearing and availed of the opportunity to appeal against the outcome of her formal grievance hearing.

I am satisfied that the employee was not informed that she could not apply for any vacancy that arose, she was quite entitled to do so. The request to provide a medical certificate certifying that she was fit to work 5 days was reasonable and was in no way discriminatory. 

The employee has no desire to work 5 days per week. 

From the facts as presented I cannot recommend in favour of the employee.

Industrial Relations Act, 1969.