Complainant

Respondent

Anonymised Parties

Social Worker

A Public Sector Organisation

Representatives

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-00041352-002

02/12/2020

The Complainant has been employed since 12th March 2018 as a social worker.

The Complainant alleges discrimination on the grounds of her disability by the Respondent.

The Complainant was informed she was required to move office. She objected as she was diagnosed with medical conditions and the new office was unsuitable. She requested an ergonomic occupational health assessment in June 2019 which was not carried out. The Respondent was refusing to complete an ergonomic assessment and making her work in unsanitary conditions affecting her medical condition. When she was on leave due to a bereavement, her office was moved. She tried to resolve the matter with the General Manager who verbally attacked her on 14th January 2020. She has been subjected to passive and direct bullying, derogatory comments and general unprofessional behaviour. She was treated differently to other members of staff. She complained to her manager, but nothing was done. She believes her employer is refusing to carry out an ergonomic assessment. She is not supported and suffered from stress. She subsequently went out on sick-leave and lodged a formal complaint in relation to the incident.

On 10th April 2020, the Complainant was fit to return to work and was redeployed to a Covid Team to be one to one with active cases of Covid-19 and Tuberculosis. At the time she was the only person to be redeployed. The organisation were actively campaigning for a social worker and took on an agency social worker. A manager told her to lodge a grievance so that her complaints could be addressed. On 10th April 2020, the Complainant sent a twenty-page letter to her line manager. From April to September 2020, she received one letter to say the grievance procedure had been put on hold due to Covid-19.

In September 2020 the Complainant was recalled to the organisation and told to work from home due to her medical condition. She waited three weeks for her equipment to arrive, and did not have proper resources. She did not have proper work to do. She told her manager she has capacity but is being ignored due to her grievance about bullying.

A meeting was then arranged for one hour to discuss the Complainants grievance on 18th November 2020. The Grievance procedure states the grievance should be heard from notification within 7 days.

The Complainant received the outcome of stage 1 of the procedure on 22nd February 2021. On 24th February 2021 she requested to move to stage 2 of the procedure. She received a reply on 19th March 2021 that the Respondent was sourcing a person to deal with the appeal of the outcome at level 1 of the grievance procedure. On 19th March 2021 she sought to move to stage 3 of the procedure given the delays. The Complainant resigned on 30th January 2022.

The Respondent’s position is that due process in accordance with the Grievance Procedure should have been exhausted prior to any external mediation or adjudication.

The Respondent received a grievance from the Complainant. There was delay due to the length of the grievance and the pandemic. An investigation was carried out, and a detailed written outcome issued on 22nd February 2021. The normal response to a grievance is a hearing within seven days, however this depends as this case was more complex and wide-ranging. The grievance was investigated at stage 1 and the Respondent was sourcing a person from an appropriate grade to deal with the appeal when the Complainant withdrew from the grievance process. The Complainant cannot move to the 3rd stage of the procedure without going through the process.

The complaint of discrimination is refuted. The internal grievance investigation process is not concluded. The Respondent never received the Complainant’s appeal to clarify her objections to the outcome of the investigation. The grievance letter did not contain any allegation of discrimination by the Respondent.

In conducting my inquiry, I have taken into account all oral and written submissions by the parties. Given the nature of the Complainant’s medical condition, I am directing my decision be anonymised due to sensitive medical information.

The Complainant alleges discrimination on the grounds of disability by the Respondent in terms of S6 (2) (g) of the Employment Equality Acts 1998. The Complainant is a social worker who has worked with the Respondent since 12th March 2018.

Section 85A(1) of the 1998-2015 Acts provides:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination, that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

 The “disability ground” is on the basis that one is a person with a disability and where the other person either does not have a disability or is a person with a different disability. The Complainant provided evidence of her medical condition after the hearing. The Complainant has a disability within the meaning of the Employment Equality Acts 1998-2015. The Respondent was given a medical report detailing the Complainant’s disability on 4th November 2019.

The Complainant complains she was moved to an unsuitable office on 4th November 2019 while on annual leave for a bereavement which caused her distress. She had specifically told the manager not to do so. This grievance was investigated by the Respondent who found there were refurbishment works ongoing, the Complainant was notified about the move and her office was moved, as were the offices of other staff who were absent for the move.

The Complainant says the new office was dirty and unsanitary, with a huge air vent, no window and it impacted her health due to her breathing condition. Another social worker shared the room with the Complainant.

On investigation of the grievance, the Respondent’s manager said the Complainant had no complaint about her first office which had the same ventilation system. The Building Manager’s report on the new office stated fresh air blows into the office through the ventilation system and stale air is extracted. The air is filtered, and dust cannot access the office.

A risk assessment was carried out by the Building Supervisor and Health & Safety Manager on the Complainant’s new office due to her underlying medical condition. The Complainant was not satisfied the risk assessment was an adequate ergonomic assessment and complained to the Health & Safety Authority. Occupational Health recommended use of an external company to carry out the risk assessment in order to resolve the issue on 3rd March 2020. The risk assessment was arranged by the Respondent but postponed by the private company due to the pandemic. It was due to be carried out when the Complainant returned to work. The Respondent’s investigation did not uphold this grievance.

Following an incident on 14th January 2010 when the Complainant alleges the General Manager verbally attacked her, she went on sick-leave and lodged a formal complaint. She said she could not continue working in the office and worked from home. The grievance investigation carried out by the Respondent said the Complainant’s version of events was denied. In the absence of further evidence, the grievance was found to be inconclusive.

On 10th April 2020, the Complainant was fit to return to work but was vulnerable to Covid-19. She was redeployed to a Covid Team where she would be one to one with active cases of Covid-19 and Tuberculosis. At the time she was the only person to be redeployed, and the organisation were actively campaigning for a social worker and took on an agency social worker. All other staff worked on video link from home, whereas she was asked to continue seeking clients. She felt discriminated against as the only social worker redeployed, and this impacted her health. She suffered low mood, felt depressed and anxious.

The Respondent’s investigation found the Respondent was requested to redeploy staff due to the pandemic. The criteria used by the organisation was to redeploy staff absent prior to March 2020. A total of three staff from the organisation were identified for redeployment using the criteria, and the grievance was not upheld.

On 10th April 2020, the Complainant sent a grievance letter to her line manager. From April to September 2020, she received one letter to say the procedure had been put on hold due to Covid-19. During the pandemic her glasses broke. Her prescription was in the Respondent’s old office, so she called in to collect it. She received a letter informing her that she was not allowed attend at her work premises without prior authorisation due to the pandemic.

In September 2020 the Complainant was recalled to the organisation and told to work from home due to her medical condition. She was waiting three weeks for her equipment to arrive, and did not have proper resources. She did not have proper work to do. She told her manager she had capacity but was ignored due to her grievance about bullying. The Complainant says all other staff were allowed remain on site. She says she was isolated and excluded and forced to work from home due to her medical condition.

The Complainant has made extensive allegations of discrimination and bullying by the Respondent which have been investigated in great detail by the Respondent.

The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of the evidential burden imposed on a Complainant by section 85A of the Act and held:

“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 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 respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a Complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination.

The Labour Court in Melbury Developments Ltd v Valpeters [2010] ELR 64, said

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

I find the Complainant has not established a prima facie case of discrimination by the Respondent and the complaint fails.

I find the Complainant has not established a prima facie case of discrimination by the Respondent and the complaint fails.

Disability discrimination, prima facie case, evidence