Complainant

Respondent

Parties

Cathy Anne  Lynch

St Vincents Healthcare Group St Vincents University Hospital

Representatives

IBEC

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-00046028-001

07/09/2021

The complainant lodged the complaint form to the Workplace Relations Commission on September 7th, 2021.

She is employed as n administrative worker with the Respondent since February 2015 but has been on sick leave since December 2021.  She is currently in receipt of Temporary Rehabilitation Remuneration (€133.46 per fortnight) having exhausted benefits from all other paid sick leave since December 2021.

On March 10th , 2020, the complainant attended an anti-lockdown protest and on her return to work she was criticised by a co-worker who was a nurse.

The complainant says she later overheard a conversation about her attendance at the protest in the course of which one colleague urged another not to have lunch with the complainant.

The following day she initiated a grievance under the Grievance Policy and two days later she went on sick leave due to stress.

HR initially said that it would process the grievance as it could not be resolved with her line manager but then on November 3rd recommended that it be returned to local level.

However, in January HR again assumed a role in the grievance and a hearing took place on January 26th.

On February 15th she learned that the grievance had not been upheld and she appealed. The appeal was dismissed on March 5th.

The complainant give evidence on oath and stated that in October 2020 a relevant risk assessment in relation to exposure to Covid was not carried out as it had been previously.

She was asked how she attributed any such change in this practice to her religion and replied that it had to be as her religion was well known.

She asserted that sanctions had been imposed by a doctor in the hospital but she could not provide evidence of this as she says that it was all done in secret.

The case under section 77 of the Employment Equality Act, 1998 by Cathy Anne Lynch against St Vincent’s University Hospital alleges that she has been discriminated against on grounds of religion in respect of ‘conditions of employment’, ‘harassment’ and ‘victimisation’.

She has not provided the most recent date of discrimination on the form, instead indicating that the discrimination is “ongoing”. The complainant has been absent from work on sick leave since December 2021.

The respondent has fully complied with its obligations under the Act and rejects that there has been any breach of the complainant ’s rights. The complainant has always been treated  fairly, equitably and in a non-discriminatory manner.

A preliminary Issue arises regarding the time limits provided for filing claims at the WRC.

The claim was filed by the complainant on the September 7th, 2021. And accordingly, the cognisable period under the Act is March 8th, 2021, to September 7th, 2021. 

The Workplace Relations Act 2015 provides, at S.41. -

S 41. (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has 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…….

S 41. (8) 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 that period was due to reasonable cause.

This complaint centres around two incidents which occurred on October 5th, 2020. 

The complaint was received by the WRC on the September 7th 2021, some eleven months after the alleged discrimination occurred and it is therefore statute barred and the Adjudication Officer does not have jurisdiction to hear the case.  

Without prejudice to the issue regarding the time limit, the complaint arose as a result of two encounters by the complainant which occurred on October 5th, 2020.  These are set out in an email dated October 6th, 2020 (copies submitted) which the complainant submitted as a grievance, to her direct manager.

The first allegation is that the complainant was asked by AK if she had attended an anti-lockdown protest the previous Saturday (October 3rd).  When the complainant confirmed that she had, AK accused her of ‘endangerment’ and noted that she (AK) had a problem with the complainant’s attendance at the protest.

On the same date, the complainant allegedly overheard a conversation which was held in another room. She contended that she overheard a colleague FY being told by a Consultant Rheumatologist and PG (a Research Nurse) not to go to lunch with her due to her attendance at the protest.

She also alleges that she overheard PG and Dr LO’N discussing with FY that she is “now a risk and probably diseased” and that they “agreed that I am to be disassociated with and avoided at all costs” and that FY, a colleague which whom the complainant would have lunch with regularly “has been banned from associating with” her at all. 

The respondent assigned a business partner to hear the complainant ’s grievance. At the time, the grievance was escalated to HR to address, however after the HR Business Partner, DW, reviewed the grievance, she advised Line Management that the first step of the Grievance process was to attempt to resolve the issue at a local level first.

CD (Head of Clinical Support) and LS (Deputy Head of Clinical Support) attempted to arrange meetings with the complainant  to discuss the grievance, however these meetings were declined.  There were some delays, compounded by the COVID crisis.

On January 15th, 2021, the complainant submitted an addendum to the initial grievance lodged on October 6th, 2020. She contended that there was another consultant in the room on October 6th where it was discussed that she was a “risk”. The complainant did not wish to name the consultant as she believed this person was coerced into agreeing with PG and Dr LO’N.

This complaint specified that the arthroscopy research was removed from her, and that the Registrar is now sending out the appointment letters. The complainant believed it was done because she had raised a grievance and that in doing so, the Respondent had communicated to another consultant that she was ‘diseased and a danger to the team’. 

The complainant stated that for the last three months her colleague remained banned from associating with her; she notes her assumption that the rest of her team also remain banned from associating with her due to her “political views”.

The complainant attended a grievance meeting on January 26th when she confirmed her interaction with AK in which she was allegedly accused of being an “endangerment”. She further clarified that when the meeting between PG, Dr LO’N and FY took place she was at the door outside the room.

The complainant further stated that it would be hard to say who else was banned from interacting with her as she was based in a separate building. She again acknowledged that she has different political views but did not, at any stage during the meeting, allude to her religious beliefs.  Notes of this meeting were submitted.

The grievance officer also met with AK on the 26th of January, who initially had provided a written outline of her interaction with the complainant on 6th October. A copy of the statement from AK was submitted to the hearing and set out the detail of the complaint.

Further detail was provided on the conduct of the grievance process. In particular AK once again stated that she had not wanted to argue with the complainant and confirmed that she had never instructed anyone to dissociate with her.

Finally, on January 27th the grievance officer met PG who stated that at the meeting on 6th October 2020 she advised FY to avoid the canteen and to avoid going out for lunches due to the rising cases of COVID. PG confirmed that she was unable to ban anyone from doing anything as she had no authority to do so. She further confirmed that the complainant was not referred to as “risk “and “diseased”.

On February 15th, the complainant was issued with the outcome of the grievance investigation. The grievance was not upheld.

There was no evidence of any discriminatory behaviour found. The grievance officer could not find or investigate any evidence of “ganging up” or the complainant‘s belief that the personal relationship within the team was negatively affected.

It was established that one part of the Arthroscopy Research was removed from the complainant, the contacting of the patients, as it was brought into the CRC to be carried out by members of the research team for efficiency purposes. It had no connection to the complainant ’s grievance.

All of the witnesses agreed that the complainant had a right to her political views and a right to attend the protests on her own time but that the employees of the hospital should be adhering to policy and protocol and following the Public Health guidelines.

The complainant was advised of her right to appeal which she exercised on February 19th 2021. 

The complainant was issued with the outcome of the appeal process on March 5th, 2021. It was not upheld.  The hospital provided an appeal stage but the complainant did not provide any additional evidence that would allow the grievance officer to re-investigate the claim. The onus was on her to do so.

The complainant stated that additional witnesses should have been interviewed in the investigation however their relevance to the investigation was not specified by the complainant .

The Grievance officer focused on reviewing the initial investigation notes, minutes of meetings and process, to ensure that the process was procedurally correct and that all relevant witnesses were interviewed in the process.

The appeal officer investigated delays and found those were due to sick leave and annual leave on the part of the complainant. It was also noted that her Manager LS and the Head of Clinical Support invited her to the meetings which she refused to attend.  The appeal officer also addressed specific points of the appeal in the letter outcome.

The complainant was dissatisfied with the outcome of her grievance appeal and on the 26th of March, advised of her intention to proceed with the WRC claim. The complainant did not lodge her complaint at the WRC however until 7th September 2021, some six months later.  

Section 85a of the Employment Equality Acts, 1998 – 2015 requires a complainant to present facts from which it can be inferred that she was treated less favorably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited (in this case, the ground of religion).

Various authorities were cited, in particular, Melbury Developments v Arturs Valpetters, and Southern Health Board v Teresa Mitchell, DEE011, [2001] ELR 201,

In this case, the respondent submits that the complainant is claiming discrimination in relation to her political views, which does not fall within any of the nine grounds prescribed by the relevant legislation.

Direct discrimination consists of two elements. The first is the less favourable treatment of the complainant and the second is the existence of religious grounds for such treatment. Both elements must be satisfied for a claim of discrimination on the ground of religion to succeed.

It is clear from the complaints as submitted by the complainant, together with subsequent communications from her, in addition to the notes of the meetings etc, that she, at no time, made any reference whatsoever to religious beliefs and in fact, religion/religious beliefs are first mentioned in the complainant ’s claim as submitted to the WRC. Up to this point, the complainant referred to political beliefs/views, which do not constitute one of the nine discriminatory grounds under the Employment Equality Acts.

The complainant has not provided evidence of less favourable treatment nor of the existence of religious grounds for any such alleged treatment.

Additionally, the complainant has not identified any other employee of a different religious belief or no belief, against whom she was or has been treated less favourably.  Thus, the complainant has provided no evidence of discrimination.

The respondent submits that it is only when the complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. It is the Respondent’s position that the complainant has failed to establish a prima facie case of discrimination and as such the burden does not shift to the Respondent in this instance.

The complainant has alleged that she was victimised by the Respondent. The complainant has not provided any information on what that victimisation is other than information in her submission that:  “The penalisation of my private and personal activities and beliefs has no end date and has continued indefinitely”.

As noted above a first preliminary issue arises regarding the time limits provided for filing claims at the WRC, as the claim was submitted by the complainant on September 7th, 2021.

This means that the cognisable period under the Act is March 8th, 2021, to September 7th, 2021, as noted in the respondent’s submission above. 

The claim form indicates that the alleged discriminatory actions of the Respondent are ‘ongoing’ however, the complainant has been absent from work on sick leave since December 2021 and no evidence was offered of any breaches in that period.

In the course of the hearing the complainant made it clear that her complaint arises from two incidents which occurred on October 5th, 2020.

Although she made a vague reference to alleged breaches continuing, she could provide no evidence of them and her period of sick leave since December 2021 commenced some nine months before making the complaint to the WRC.

She failed to provide any explanation for the delay in making her complaint much less one that came anywhere close to meeting the criteria in Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338 and in other cases; essentially the ‘explain and excuse’ test.

Given that, it is unnecessary to say that she also fell short also of remotely establishing a prima facie case on the religion ground. 

Her assertion in evidence that her political views were founded on her religious views bring her nowhere near the standard necessary to meet the relatively low bar of a presumption of discrimination on one of the protected grounds.

The complainant sought to thread a connecting line between attendance at a protest against public health measures, through to her ‘politics’ and on to her religion so as to ground a case of discrimination on this slender threat.

It is a rather long stretch and not a credible one.

Her complaint is not within jurisdiction and is not well-founded.

For the reasons set out above complaint CA-00046028-001 is not within jurisdiction and is not well founded.

Equality, discrimination, time limits