Complainant

Respondent

Parties

Emmet  Jordan

Health Service Executive HSE-Midwest

Act

Complaint Reference No.

Date of Receipt

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

CA-00040813-001

05/11/2020

The Complainant commenced his employment with the Respondent on 5th February 2020 as a Clerical Officer. His employment ended on 8th July 2020.

The Complainant referred his claim to the Director General of the Workplace Relations Commission on 5th November 2020 alleging that he was discriminated against by reason of his family status and that he was discriminated against in conditions of employment.

The Complainant submits as follows:

The Complainant used the train on a daily basis to get to and from work. It was his only way of getting to and from work. He lives with someone who would be considered high risk in the current climate of Covid-19.

At the outset of the Covid-19 pandemic the Complainant and his colleagues were asked to work from home for a number of weeks. After this they were asked to come back to the office for two days per week and work from home for three days per week. Initially this was not a problem as the Complainant was usually the only person on the train or he had a carriage to himself. As time progressed, more and more people started using the train and Irish Rail were not enforcing the wearing of masks. This became an issue for the Complainant as he did not want to pick up anything and bring it home to his mother. The Complainant submits that he brought his issue to the attention of the Manger on a number of occasions to see if he could work from home 5 days per week. He claims that he got a number of reasons as to why this was not possible:

1.       He was needed in the office for training. He claims that he never did any training.

2.       It was not fair on the other people in the office. He claims that he was the only person who used the train and resided with someone who would be considered high risk.

3.       There wouldn't be enough work at home. He claims that he offered to become solely responsible for salary certs and to buy a scanner so he would have plenty of work at home. The Complainant submits that the Manager’s response was that this was a GDPR issue. The Complainant questioned that as staff were told previously to take salary certs home for the days they were not in the office.

The Complainant submits that at this stage he started to look elsewhere for work. He was offered another role in the finance department which he accepted. The Complainant submits that he could live with his uncle who lived close by so he could walk to and from work everyday and avoid using public transport. The Complainant informed the Manager of his decision and initially she wished him well. A few days later she informed the Complainant that he could not go anywhere until a replacement was got and that he would have to stay on for a maximum of four weeks. The Complainant claims that he asked if he could work from home for these four weeks and he was told that he could not. The Complainant submits that this did not sit well with him as he had genuine health concerns for his mother. He says that he asked the Manager if there was anything else he could do or anyone else he could speak to about his issue and she said that there was not. The Manager said that she spoke to her manager about the issue and she was told in return that it's up to the Complainant to get to work and he had to come to the office. The Complainant submits that he had no other way of getting to work and the Manager was aware of this fact. He claims that he offered to provide a letter from his family doctor to make the Manager’s life easier and that made no difference either. He says that the Manager went so far as to accuse him of holding her to ransom.

The Complainant submits that he spoke on the phone with the Manager on the 8th July 2020. He agreed to come to office 2 days per week. He claims that he felt pressured into making this decision as he was afraid that he would not get a favourable reference for the job in the finance department. He would not get the job without this reference.

The Complainant submits that he spoke with his mother later that evening and they both agreed that the stress of all this was doing his mental health no favours and his mother felt very uncomfortable and unsafe that he was traveling on the train. The Complainant handed in his notice effective immediately the following morning.

The Complainant submits that his induction when he started in the payroll department in February consisted of being brought into a room by a grade 5 and grade 6. They discussed start times, finish times, break times, flexi time and whether the Complainant could wear runners in the office. It was over in a couple of minutes.

The Complainant submits that he had no idea of what procedures to follow in relation to his grievance. The Complainant claims that the Manager never offered any advice in that respect either. The Complainant confirmed at the adjudication hearing that he received and signed a contract, which outlined the grievance procedure in place.

The Complainant submits that he did not get the job in the Finance department, and he was removed from the panel due to the reference that the Manager provided. She mentioned that the Complainant agreed to come to work two days a week and that he handed in his notice the following day but neglected to give any context. The Complainant feels this was grossly unfair.

The Respondent submits as follows:

Background

The Complainant commenced employment with the HSE as a Clerical Officer Grade III on 5 February 2020.  He was employed on a Specified Purpose Contract to cover a vacant post and was assigned to HBS Finance, Payroll in Limerick.  He was employed on a full-time basis (37 hours per week).  A copy of his contract of employment was exhibited at the hearing.  The expected end date set out in this contract was 6 June 2020 but the requirement to fill the post in a temporary capacity extended beyond this date.

The Complainant submitted his resignation by email dated 9 July 2020 (08:20am) to the Payroll Manager in which he stated “I’m officially handing in my resignation effective immediately.”  The Manager replied by email dated 9 July (09:20am) and stated that “I accept your resignation as of yesterday evening.”  A copy of the email correspondence in relation to the resignation was exhibited at the hearing. 

Section 23 of the Complainant’s contract of employment required him to give the Respondent two weeks’ notice in writing of his intention to terminate his employment but he did not comply with this provision.

Covid-19 Working Arrangements

In line with Public Health Guidance on the outbreak of Covid-19 (16th March 2020) staff in the Payroll Department where the Complainant was based were given the option of working from home fulltime for a number of weeks then to attend the office for three days per week.  The Manager had the use of three offices so when staff were in the office they could be socially distanced in line with the Government Guidelines.  Some staff opted to work in the office fulltime and this was also facilitated. 

By around mid-June 2020 it had become apparent through weekly management meetings that it was difficult to maintain a sufficient level of work with Payroll staff working from home three days per week.  It was agreed that all staff working from home would switch to working three days in the office and two days at home.  While working on site staff were able to maintain social distancing with the use of three offices.  This was communicated to all staff and agreed.  A copy of the relevant correspondence was exhibited at the hearing.

The breakdown of staff working arrangements in the department in June was as follows;

3 whole time equivalent (wte)  Grade III – 3 days in the office and 2 days working from home

1 wte Grade III – 2 days in the office and 3 days from home – this was subsequently offered to the Complainant when he brought his concerns to the Manager

3 wte Grade IV – 3 days in the office and 2 days from home

2 wte Grade IV – 3 days in the office and 2 days from home

3 wte Grade V – 3 days in the office and 2 days from home

1 wte Grade VI – 3 days in the office and 2 days from home

1 wte Grade VI – 3 days in the office and 2 days from home

The COVID-19 working arrangements that the Manager put in place during this period were consistent with the Government advice and the advice to public service employers as set out in HSE HR Circular 45/2020 – Guidance and FAQs for Public Service Employers during COVID-19.  Section 1 of the DPER FAQs deals with attendance in the workplace/office during COVID-19. 

It should be noted that payroll services were classified as an essential service on the Government website gov.ie. during this period.  The Government advice during this period was that essential workers do not include administrative and other support for such businesses and services unless specified in section 13 of the gov.ie website and the physical presence of a worker is required.  The list of services at section 13 relating to administrative and support activities included:

·       payroll and payment services necessary for the operation of undertakings and bodies

The payroll department implemented a blended working arrangement for staff: 3 days on site and 2 days working from home. 

The Complainant expressed his concerns with travelling on the train.  The Manager advised him that she was trying to be fair to everyone but agreed to allow him to continue to work from home three days per week and come into the office two days per week.  The Complainant was in fact given preferential treatment as he was the only employee in the payroll department who was allowed to work from home 3 days per week.

The Complainant raised three issues in his submission as the reasons why he was not allowed to work at home on a full-time basis:

I was needed in the office for training (I never did any training).  – There was inputting of “Acting up”  and other payments submitted on Miscellaneous Allowance Forms, that the Complainant needed to get trained up on as this was part of his Grade III role. Unfortunately, as Covid hit there were no staff available to train the Complainant.  The Complainant took up the post in February 2020 and Covid lockdown came on 18th March 2020.  The days the Complainant would be in the office the person to train him was not there, therefore making it difficult to get training done.  However, this would have been less difficult with the changes to arrangements of working from home to 3 days in the office and 2 days at home.

It was not fair on the other people in the office. (I was the only person who used the train and resided with someone who would be considered high risk) – It is understood the Complainant was the only staff member who took the train. However, two other staff members took the bus every day also. There were other staff members who had elderly parents to care for, including the Manager, who were continuing to care for them while working in the office. The Manager had agreed with the Complainant that he could work 3 days from home for the duration of his notice or until he started his new post in UHL group but all other staff had to work 3 days in the office.

There wouldn’t be enough work at home. (I offered to become solely responsible for salary certs and buy a scanner so I would have plenty of work at home).  The Manager’s response to this was GDPR.  If GDPR was such an issue, why were we told to take salary certs home for the days we were not in the office? GDPR was an ongoing concern with staff working from home as paperwork needed to be brought to and from work , salary certs being one.  This was another reason for bringing staff into the office 3 days per week so this could be monitored and lessen the possibility of breaches.  Salary Certs were only part of the Complainant’s role.  The department were down two Grade III’s and the Complainant was required to do much more inputting of Miscellaneous Allowance forms which increased ten-fold due to Covid as frontline staff were moving to other posts on a regular basis.

On the week commencing 29 June 2020 the Complainant told the Manager that his uncle was very sick and also that he was going to be leaving Payroll and moving to Finance in University Hospital Limerick.  The Manager wished him well and also told him that she would release him after the standard four weeks as he was to be replaced before leaving. 

On 6 July 2020, the Complainant rang the Manager to say his uncle had died and the burial was that day.  The Manager expressed her condolences and the Complainant subsequently told her that he would be back to work the following day.

On 7 July 2020, staff members tried to phone the Complainant a number of times as it became apparent he had not logged on to his laptop.  The Complainant eventually emailed the Manager to say he wasn’t going to be working that day as it was a very emotional time for both himself and his mother but that he would return to work the following as it was his day to be onsite in the office.  The Manager emailed him back to confirm same. A copy of the email was exhibited at the hearing.

On 8 July 2020, the Manager received an email from the Complainant to say that he would not be coming into the office as he felt the situation on the train was a risk to both himself and his mother and he said he was going to be working from home.  And “if this is unsuitable please let me know and I will hand in my notice”. A copy of the email was exhibited at the hearing.

The Manager tried to phone the Complainant a number of times without a reply.  The Manager emailed the Complainant who advised that his phone was broken and that he would phone when his mother returned from town and use her phone.  There followed a number of emails through that day regarding what work he was doing etc., and it ended that afternoon with the Complainant advising the Manager he would be into office the following day. Copies of the emails were exhibited at the hearing.

On 9 July 2020 the Manager received the Complainant’s email in which he submitted his resignation.  Following his resignation there followed a number of emails in relation to completion of the HR Leaving Form and the return of his laptop and any work he had taken home.  He refused to speak to or meet with the Manager or any other colleagues in the office.  The Complainant eventually agreed to return everything and the relevant paperwork that night in the lobby of the Payroll offices.

The Complainant’s application for the vacant post in Finance in University Hospital Limerick was still being processed and an offer of employment was subject to receipt of satisfactory references.  The Manager was contacted by HBS HR requesting her to complete a reference on his behalf.  A copy of the reference was exhibited at the hearing.  The Manager provided information based on her experience of his period of employment in the Payroll department.  His family status or otherwise had no bearing on the content of the reference she submitted.

Legal Framework

The Employment Equality Acts 1998 to 2015 prohibit discrimination on nine grounds.  Section 6(1) of the Act provides as follows-

“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 comparably situation on any grounds specified in subjection (2) in this Act referred to as the “discriminatory ground”.

3.2         Section 6(2) states that:

“As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are-

…….

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

 and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

The Respondent contends that the onus is on the Complainant to provide facts to show that he comes within the scope of the family status ground.  The details outlined in the WRC Complaint Form indicate that the Complainant is relying on the family status ground on the basis that he lives with his mother who “would be considered high risk in the current climate of covid-19”.  However, he does not provide further details to demonstrate that he meets the definition of having “family status” as defined by the Act.  In addition, the following statement in his Complaint Form suggests that he is not a “resident primary carer” in relation to his mother as it appears that he would have changed his place of residence if offered a different position with the Respondent:

“The panel I came off of initially, offered me another role in the finance department which I accepted.  My uncle lives close by so I could walk to and from work everyday and stay clear of public transport.”

The Respondent contends that the Complainant must provide evidence if he is seeking to maintain that he has family status as defined in the Act and that he was treated less favourably than a person who does not have family status.

Furthermore, the Respondent raises the following preliminary points of objection to the within complaint:

Burden of Proof

The Respondent contends that the Complainant has not made a prima facie case that he was treated less favourably than a person without family status when his request to work at home five days per week was not granted but he was facilitated to work from home three days per week/two days on site.

In Patricia Nolan –v- Iarnrod Eireann (ADJ-00028865), the Adjudication Officer referred to the onus on the Complainant to show a nexus in relation to alleged discriminatory treatment and family status:

“Having carefully considered all the evidence adduced in the within claim, I find that the complainant has not demonstrated a nexus in relation to her treatment and her family status and therefore I find that she has not established a prima facie case of discrimination in relation to access to employment on grounds of her family status.”

Section 85A(i) of the Employment Equality Acts deals with the burden of proof and states that:-

‘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 to the contrary.’

This has the effect of shifting the burden of proof to the Respondent but only once the Complainant has proved a prima facie case that the difference in treatment alleged is due to discrimination on one of the discriminatory grounds.  In Southern Health Board v. Mitchell (DEE011), the Labour Court explained that the onus on the complainant in seeking to establish a prima facie case is as follows:

‘The first requirement is that the claimant 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 claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination.’

In Minaguchi v. Wineport Lakeshore Restaurant (DEC-E/2002/20), the primary facts were defined by the Equality Officer as follows:-

‘It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

That s/he is covered by the relevant discriminatory ground(s);

That s/he has been subjected to specific treatments; and

That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.’

In Southern Health Board v. Mitchell, the Labour Court went on to say that: -

‘It is only if those primary facts are regarded…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.’ 

It is submitted that the Complainant in this case has not proved facts from which it may be presumed that there has been discrimination.  As set out in Melbury Developments Ltd v Valpeters(EDA0917), "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Response to substantive complaint

Notwithstanding the above preliminary points, the following is the Respondent’s substantive response to the complaint in relation to the Complainant’s condition of employment:

In his Complaint Form the Complainant did not select the following:

“I say the respondent treated me unlawfully by discriminating against me in getting a job.”

Without prejudice to the foregoing, the Respondent rejects his assertion that the decision by the Respondent not to offer him employment in the post in the Finance department (which occurred after his resignation on 8 July 2020) was due to his family status or otherwise or any of the nine protected grounds under the Act.

Conclusion

The Respondent submits that the Complainant’s complaint that he has been discriminated against on grounds of family status in relation to his conditions of employment is not well-founded.  He has not provided any facts to support a prima facie claim that he was subjected to less favourable treatment by reason of family status as defined by the Act.

The issue for consideration in this case is whether the Complainant was discriminated against by the Respondent by reason of his family status.

Section 6 of the the Employment Equality Act, 1998 as amended, stipulates:

“Discrimination for the purposes of this Act

(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—

…

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

Family status is defined under Section 2 of the Act as follows:

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;”

Section 8 of the Act provides as follows:

“Discrimination by the employer etc.

8.(1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker…” 

Section 85A (1) of the Act states: “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 means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In Determination EDA0821 McCarthy v Cork City Council, the Labour Court pointed out that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The Complainant argued that he lived with his mother who had cancer and, as a result, was classed as vulnerable. The Complainant confirmed to the Adjudication Officer that his mother did not require support or care and he was not a carer within the definition of the Act.

There was no evidence adduced that the Complainant is a parent, in loco parentis in relation to a person who has not attained the age of 18 years, or is a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis.

I, therefore, find that the Complainant did not establish a prima facie case of discrimination on the family status ground as he did not satisfy the family status criteria under the Act.

Having considered the evidence available to me, I find that the Complainant has not established a prima facie case of discrimination on the family status ground.

I declare this complaint to be not well founded.

Discrimination- family status – no prima facie case