Complainant

Respondent

Parties

Joyce  Owens

Hope Autism Care Centre Limited t/a Hope Montessori & Autism Care Centre

Representatives

Self -Represented

Fiona Egan  Peninsula Group Limited

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-00038689-001

10/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act, 2006

CA-00038689-002 WITHDRAWN

10/06/2020

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

CA-00038689-003

10/06/2020

The Complainant was employed as a teacher with the Respondent. The Respondent is a leading provider in childcare who specialise in early childhood Montessori, creche and afterschool care and operates in multiple locations around Ireland. The Complainant commenced employment on 27th August 2019 and her position was terminated on 6 January 2020. The Complainant worked a 25-hour week for gross pay of €320; net €290. The Complainant submits that she was subject to unfavourable treatment and harassed on the grounds of age and her Irish nationality contrary to the Employment Equality Acts 1998-2015 and furthermore that she was penalised for making a health and safety complaint, by way of exclusion, contrary to section 27 of the Safety, Health and Welfare at Work Act, 2005. The Respondent denies all complaints.

CA-00038689 Employment Equality Complaints:

The Complainant submits that she was unfavourably treated and harassed by a Manager with the Respondent for a period of two months. She was called a trainee in front of others and issues were raised about her performance in front of other staff.

 The Complainant submits she was asked to leave the Special Needs Room occasionally by a teacher of Spanish heritage whom she claimed had told her not to teach the children in a specific location. The Complainant submits that due to managerial interference, her teaching became sporadic and extremely inconsistent in line with her qualifications. This constituted harassment. Additional harassment came in the form of the manager asking publicly for copies of her CV and qualifications. The Complainant further submits that no constructive feedback was given to her.

Nationality Grounds:

The Complainant asserts that Spanish teachers at the location spoke in Spanish at times amongst themselves and that she felt excluded as an Irish person and non-Spanish speaker.

Age Grounds:

The Complainant in evidence stated that colleagues continually referred to her purported extensive experience as a teacher and the Complainant perceived this to be an implied reference to her age and thus was a contributing reason as to why she was harassed and treated unfavourably compared to younger colleagues.

CA-00038689-003 – Penalisation under the Safety, Health and Welfare at Work Act 2005:

The Complainant sent a written grievance to the Respondent on 7 December 2019 referring, amongst other things, to a concern she had with regard to noise levels whilst teaching.  She outlined how these resulted from shouting from the door, loud conversations and other intrusions whilst teaching.  The Complainant asserts that the making of this complaint contributed to her exclusion by the Respondent.

CA-00038689 Employment Equality Complaints:

The Respondent submits that the employment relationship they had with the Complainant was difficult from the beginning. Since her start date the Complainant had developed a pattern of lateness and absenteeism. Members of the Respondents staff and a parent had made complaints about her. The Respondent also submits that a member of staff had resigned over the alleged behaviour of the Complainant.  On the 4th of November 2019 the Complainants employment was terminated by the Respondent. The Respondent cited a customer complaint regarding her attitude and a high level of absenteeism from her start date of August 27th, 2019.

At the end of November 2019, the Respondents key members of staff had refused to work with the Complainant and the Respondent was forced to place the Complainant on garden leave for the remainder of her notice period. Her employment terminated on the 6th of January 2020.

The Respondent owner gave evidence that the Respondent employs a diverse workforce, in terms of both age profile and nationality. This included Irish staff and staff of the same age as the Complainant. Further evidence was given that no complaint was ever made by the Complainant that she was harassed or subjected to unfair treatment on the grounds of age or nationality.

The Respondent submits that the Complainant has failed to name a comparator in these proceedings to support her case and that she further has to establish a prima facia case of discrimination before the burden of proof shifts to the Respondent as per Section 85A (1) of the Employment Equality Act 1998, as amended.

The Respondent refers to the Labour Court decision of Melbury Developments v Arthur Velpetters (EDA0917) where the Court examined the circumstances in which the probative burden of proof can be discharged.

CA-00038689-003 – Penalisation under the Safety, Health and Welfare at Work Act 2005:

The Respondent raised an issue in its written submission regarding the cognisable period of the complaint. The Respondent argues that the complaint was lodged on 10th June 2020 and as such the cognisable period would start six (6) months prior to this date, being 10th December 2019. The Respondent submits the onus is then on the Complainant to prove that she made a disclosure under the 2005 Act and that she suffered a detriment and was penalised because of that disclosure during the cognisable period.

Without prejudice to the foregoing position, the Respondent refers to the Labour Court decision in MSR-FSR Ireland Limited -v-Cummins (HSD204) on what constitutes a disclosure under section 27 of the 2005 Act.

The Respondent owner in evidence stated that she is the proprietor of a number of locations within the Respondent organisation and that the Cork classroom of pupils is recognised as the calmest in the country.  Furthermore, the Respondent submits the reason for the imposition of garden leave, was not exclusion per se, nor was it was any reason relating to a health and safety complaint but instead was related to the continued unacceptable conduct of the Complainant which resulted in other staff delivering an ultimatum that if the Complainant was not removed from the workplace, they would withdraw their labour.

The Respondent also relies on the established ‘but for’ test in the decision of the Labour Court in Paul O'Neill v Toni & Guy Blackrock Limited [2010] ELR 21, where the Court held that the detriment complained of must have been imposed for having committed a protected act within the meaning of Section 27(3) of the Act.

CA-00038689-001 Employment Equality Complaints:

The Complainant submitted that she was discriminated against by way of unfavourable treatment and harassment on the grounds of her age and her Irish nationality. The applicable provisions under the Employment Equality Act 1998, as amended are as follows:

6. 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,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

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

 …. (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

… (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

 Harassment is defined at section 14A where it provides:

 (1) For the purposes of this Act, where—

(a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim's employer, or

(iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment.

 (7)

(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Section 85A (1) of the 1998 Act, as amended 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.”

The Respondent opened the Labour Court decision of Melbury Developments v Arthur Velpetters (EDA0917) where the Court, whilst examining the circumstances in which the probative burden of proof operates held as follows: –

“Section 85A of the Acts 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.”

Summary of Relevant Evidence and Submissions;

Discriminatory Treatment - Age Grounds:

The Complainant’s only explicit evidence of age grounds discrimination was that people would refer to her perceived extensive experience in conversation with her and that she took comments as being derogatory and in reference to her age. I cannot see how such normal workplace discourse could be classed as unfavourable treatment. The Complainant selected no comparator in contrast to the position of the Respondent who gave cogent evidence of a diverse workforce of different age groups who brought no age-related grievances to the fore. I find it significant that the Complainant submitted numerous, detailed written grievances in the 5-month period in which she was employed yet none of them referenced a complaint or grievance in relation to age.

Discriminatory Treatment – Nationality:

The Complainant gave evidence that she felt excluded when Spanish colleagues occasionally conversed in Spanish. However, this is a very subjective position and some evidence must be proffered by the Complainant that this conduct was in some way directed towards her. There was no evidence from either side that there was a language policy regarding conversations between employees of the same nationality and indeed to impose one would be questionable under Equality Legislation.   The Respondent gave evidence that there was a range of nationalities in the workplace, including Irish workers, and that issues of use of national language in internal conversations did not arise. As referenced above on an associated issue, there is a significance in the fact that the detailed written Complainant’s grievances, prior to receiving her notice, did not reference a complaint or grievance in relation her Irish nationality nor in relation to Spanish being spoken amongst Spanish workers.   

Harassment:

The Complainant alleged that she was harassed during the course of her employment by her Supervisors and the Respondent Manager.  The Complainant referred to being corrected and criticised in her work on a constant basis. The Respondent submitted that the Complainant inferred normal observation in her probationary period to constitute harassment on the part of her superiors but that it was not harassment, nor any other intentional malicious behaviour as defined under the Employment Equality Act but was instead normal management of employees in practice.

 I refer to the Labour Court in Melbury Developments regarding the standard of proof required for making a prima facie case, when the Court stated that “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.”

It is clear to me, based on the evidence, that the Complainant has provided no plausible position to be considered when outlining discrimination by way of unfavourable treatment or harassment, based on age or nationality grounds. I find that her assertions on age and nationality discrimination were merely that - assertions, unsupported by any convincing evidence establishing the primary facts necessary to pass the prima facie test as outlined by the Labour Court in Melbury Developments. Furthermore, I conclude that she conflated the narrow definition of harassment under the Employment Equality Act with what she considered unwanted treatment from previous supervisors and a Manager, which by her own admittance at the hearing, she did not think was because of her age or nationality.

Having considered the relevant evidence before me I find that the Complainant has not established a prima facie case of discrimination by way of unfavourable treatment, or harassment, on age and nationality grounds. Therefore, I find the Complainant was not discriminated against under the Employment Equality Acts 1998-2015.   

CA-00038689-003 – Penalisation under the Safety, Health and Welfare at Work Act 2005:

The Applicable Law:

Section 13 of the Safety, Health and Welfare at Work Act 2005 defines the duties of an employee in the relevant provisions, as follows at section 13: 

13.— (1) An employee shall, while at work—

(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work,

(b) ensure that he or she is not under the influence of an intoxicant to the extent that he or she is in such a state as to endanger his or her own safety, health or welfare at work or that of any other person,

(c) if reasonably required by his or her employer, submit to any appropriate, reasonable and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner who is a competent person, as may be prescribed,

(d) co-operate with his or her employer or any other person so far as is necessary to enable his or her employer or the other person to comply with the relevant statutory provisions, as appropriate,

(e) not engage in improper conduct or other behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person,

(f) attend such training and, as appropriate, undergo such assessment as may reasonably be required by his or her employer or as may be prescribed relating to safety, health and welfare at work or relating to the work carried out by the employee,

(g) having regard to his or her training and the instructions given by his or her employer, make correct use of any article or substance provided for use by the employee at work or for the protection of his or her safety, health and welfare at work, including protective clothing or equipment,

(h) report to his or her employer or to any other appropriate person, as soon as practicable—

(i) any work being carried on, or likely to be carried on, in a manner which may endanger the safety, health or welfare at work of the employee or that of any other person,

(ii) any defect in the place of work, the systems of work, any article or substance which might endanger the safety, health or welfare at work of the employee or that of any other person, or

(iii) any contravention of the relevant statutory provisions which may endanger the safety, health and welfare at work of the employee or that of any other person, of which he or she is aware…

Section 27 of the Act deals with penalisation and protection for employees as follows:

(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

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

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

(b) demotion or loss of opportunity for promotion,

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

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

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

( e) being a safety representative or an employee designated under section 11or appointed under section 18to perform functions under this Act, or

( f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

The recognised seminal case in relation to the interpretation of the Act, which was opened by the Respondent, is Toni and Guy Blackrock v Paul O’Neill [2010] 21 E.L.R.where the Labour Court set out the test to be applied in determining whether a complainant has made out the necessary causal link between the detriment complained of and the reporting of the protected Act:

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

A more precise description of the burden of proof was further given by the Court in Toni & Guy

“….it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus, the claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the claimant's dismissal.”

In this instant case the Complainant must establish: (a) on the balance of probabilities, that she committed a protected act, (b) that she suffered a detriment (c) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. If both limbs are satisfied, the burden shifts to the Respondent to show, on credible evidence and to the normal civil standard, that the protected act did not influence the detriment imposed.

The Respondent raised an issue by way of a preliminary point in a written submission regarding the cognisable period for penalisation.  The Respondent submitted that the complaint was lodged with the Workplace Relations Commission on 10th June 2020 and as such the cognisable period would start six (6) months prior to this date, being 10th December 2019. The onus is then on the Complainant to prove that she made a disclosure under the 2005 Act and that she suffered a detriment and was penalised because of that disclosure during the cognisable period. It is clear to me that the Complainant, in evidence, stated that her complaint regarding noise levels in the classroom was made in writing to the Respondent on 7 December 2019 by way of email, and as part of an extensive list of workplace grievances. The Complainant in evidence stated that the penalisation was by way of exclusion but was not clear in her evidence as to how she was excluded after making the complaint. I can only conclude that the exclusion referred to in these circumstances relates to the ‘garden leave’ which seems to have been imposed by way of letter from the Respondent on 12 December 2019. The Complainant’s employment had been terminated by notice letter of 4 November 2019 and she was working out her notice until official termination date of 6 January 2020.  I therefore find that the alleged penalisation is within the cognisable period.

I find that the Complainant did commit a protected act under the legislation in that she did raise a concern about noise levels in the classroom.

The next question to be determined is whether the Complainant suffer a detriment by way of exclusion. The Complainant was not altogether clear on this point in evidence, but I am assuming that the detriment of exclusion she complains about refers to the ‘garden leave’ which in effect is suspension with pay, albeit during her notice period.

The most important element of the ‘but for’ test as outlined in Toni and Guy Blackrock  is that in having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. The health and safety concern was raised in written form by the Complainant in a long list of grievances on 7 December 2019. Any reading of the documentation shows that the noise level concern in the classroom, in itself, formed only a very minor part of a long list of the work-related grievances. The timing must also be considered. This concern was never raised by the Complainant prior to the receipt of notice of termination of her contract. The Respondent gave convincing, plausible evidence that the reason for the imposition of ‘garden leave’ during the notice period was the overhanging threat of withdrawal of labour by staff if the Complainant remained working. It is not my role here under the legislation to determine the merits or otherwise of imposing garden leave in such a situation, other than inquiring as to the reason for imposition of the leave in the first place, and crucially, determining if the Complainant was put on garden leave for raising her concern about noise levels in the classroom.

 Having considered all the evidence, I find on the balance of probabilities that  the health and safety concern raised by the Complainant was not an operative consideration by the Respondent for excluding/imposing garden leave on the Complainant during her notice period. I conclude that the Complainant did not discharge the strict burden of proof imposed upon her in claiming penalisation under section 27 of the Safety Health and Welfare at Work Act 2005 and I therefore find that the complaint was not well founded.

CA-00038689-001 Employment Equality Complaints:

Having considered the relevant evidence before me I find that the Complainant has not established a prima facie case of discrimination by way of unfavourable treatment or harassment on age and nationality grounds. Therefore, I find the Complainant was not discriminated against under the Employment Equality Acts 1998-2015.  

CA-00038689-003 – Penalisation under the Safety, Health and Welfare at Work Act 2005:

Having considered the relevant  evidence, I find on the balance of probabilities that  the health and safety concern raised by the Complainant was not an operative consideration by the Respondent for excluding/imposing garden leave on the Complainant during her notice period. I conclude that the Complainant did not discharge the strict burden of proof imposed upon her in claiming penalisation under section 27 of the Safety Health and Welfare at Work Act 2005 and I therefore find that the complaint was not well founded.

Employment Equality Acts 1998-2015, Harassment, Age Ground, Nationality Ground, Section 27 of the Safety Health and Welfare at Work Act 2005, Penalisation.