Complainant

Respondent

Anonymised Parties

An Individual

A Healthcare Provider

Representatives

Aisling McDevitt of IBEC

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-00048625-001

14/02/2022

At the request of the Complainant I agreed to anonymise my decision in this matter.  I took this decision because I was satisfied that private medical information might be discussed in the course of the hearing. During the course of the hearing it became clear that previous Labour Court and WRC determinations concerning the parties which had been cited by the Respondent and would necessarily feature in my decision. The WRC decisions were issued pre-Zalewski and as such do not identify the parties, but the Labour Court decisions were not anonymised. As such I have sought to refer to these decisions by way of the dates at which they were arrived rather than by the associated reference numbers. I note that this does result in some risk that the parties can be identified however I am of the view that I have no alternative.

The Complainant worked for the Respondent from in March of 2003 until 20th May 2019 when she was placed on ill health retirement.

The Complainant subsequently brought a number of complaints to the WRC under a variety of acts, namely the Industrial Relations Acts, the Employment Equality Acts, the Payment of Wages Acts and the Minimum Notice and Terms of Employment Act.  These complaints alleged that a number of workplace grievances had not been addressed by the Respondent as well as  allegations that she had not received adequate notice upon the termination of her employment, further complaints regarding her payment during a period of illness absence, complaints regarding disciplinary processes, complaints regarding the secondment of another staff member within the Respondent organisation, complaints regarding the training received by another staff member compared with her own, complaints regarding the advertising of new roles within the Respondent organisation, health and safety issues regarding her working area and complaints regarding the manner in which internal meetings were held.

The Workplace Relations Commission issued decisions in the above matters on the 30th of September 2019 and the 18th of November 2020. The Adjudication Officer did not uphold any of the statutory complaints and opted to make no recommendations regarding the industrial relations cases.

The Complainant then appealed two Employment Equality Act complaints to the Labour Court and brought a Section 20(1) complaint under the Industrial Relations Act.

One of the Employment Equality Act complaints was appealed outside of the 42 day appeal window and the Court determined it was not a valid appeal. This decision issued on 13th of December 2021.

The other set of Employment Equality Act complaints the Court found in favour of the Complainant on one issue. While the Respondent had obtained medical advice which supported retiring the Complainant on ill health grounds they had failed to show that they had considered whether reasonable accommodations could retain her in her role. As such the Respondent was found to have discriminated against the Complainant on the disability ground and was directed to pay the Complainant a sum of €10,000 in compensation. This decision issued on 4th of July 2022.

The Labour Court also issued a recommendation concerning the Complainants Industrial Relations Act complaint by way of Section 20(1). The Court determined that as a result of Section 26A it could not consider the matter as it had been referred to the Court more than a year after the Complainant’s retirement.

The Complainant began referring the complaints which are the subject matter of this dispute shortly after the second set of Employment Equality complaints were heard by the WRC in October 2020. The majority of these cases were listed under ADJ-00030360.

In 2021 and 2022 the Complainant submitted further Employment Equality complaints which were placed under ADJ-00032093, ADJ-0032418, ADJ-00040029, ADJ-00037341, ADJ-00035260, ADJ-00037339 and this case ADJ-00037340. 

The Complainant also submitted complaints under the Safety Heath and Welfare at Work Act in 2021 and these were listed under ADJ-00036391 and ADJ-00040031.

A hearing was held to consider all of these matters together on the 19th of January 2023. On review of the correspondence I am satisfied that the parties were notified of all the matters to be considered by reference to each ADJ number in an appendix to the notification letter.

The Complainant attended the hearing unrepresented. The Respondent attended represented by Ms Aisling McDevitt of IBEC. In advance of the hearing the Respondent indicated that they wished to raise a number of preliminary issues.

These preliminary issues were that the WRC did not have jurisdiction to hear these complaints for a variety of reason and are outlined in more detail below.

As a result of the preliminary which were raised I gave the Complainant the opportunity to issue further submissions on the preliminary issues by the 3rd of February 2023 date.

I have received the following from the Complainant:

·        A email submission regarding ADJ-00030360 dated 27.01.2023

·        An email submission regarding ADJ-00030360 CA-00050723 (EQUALITY COMPLAINT GENDER AND DISABILITY GROUNDS) dated 27.01.23.

·        An Email submission concerning ADJ-00035260 CA-00046349 &  CA-00052851 (Document 1) dated 27.01.23

·        An Email submission concerning ADJ-00035260  CA-00054386 (Document 2) dated 27.01.23

·        An Email submission concerning ADJ-00032093  CA-00042135 dated the 30.01.23

·        An Email submission titled Burden of Proof Document Re:  Gender Pay since May 2019 dated 22nd December 2022

·        An Email Submission concerning CA-00050974 ADJ-00030360 dated  30.01.2023

·        An Email Submission concerning ADJ–00036391, CA-00047539 and CA-00047671 dated 31.01.23

·        An Email Submission concerning ADJ-00037340 CA-00048625-001 dated 25.01.23

·        An Email Submission concerning ADJ -00030360 CA-00050527 CA-00051127  CA-00053092 marked document 1 of 5 and dated 02.02.23

·        An Email Submission concerning ADJ-00030360 CA-00050527 CA-00051127 CA-00053092 marked document 5 of 5 and dated 02.02.23

·        An Email Submission concerning ADJ-00037399 CA-00048619 dated 03.02.23

·        An Email Submission concerning ADJ- 00030360 CA-00050527 CA-00051127 CA-00053092 marked document 2 of 5 and sent on the 09.02.23

·        An Email Submission concerning CA-00051498 dated 09.02.23

·        Hard copies of a number of these submissions were received by the WRC on 13.02.23 including a booklet marked ADJ-00035260/ CA00046349 Equality Gender and (facet Imputed Disability) dated 12th of October 2021.

·        An Email Letter to the Adjudicator concerning ADJ-00030360 and Associated Claims dated 03.03.23

When I adjourned the hearing I was clear that I would consider the preliminary issues further and if I do not have jurisdiction to consider any complaint further I would issue a decision to that effect. I also outlined that if determined that I did have jurisdiction to consider any complaint further I would list the matter again for a resumed hearing and consider the substantive issues.

This complaint concerns continuous discrimination of the Complainant which began in May 2019. She remains suspended from work. When the Respondent was determining key issues they failed to take into account issues related to her gender, namely menopause. The Respondent continues to send her annual declaration forms relating to her pension. The Complainant does not consent to the pension or the Respondent imputing a medical condition on her. Her rights have been violated.

Following the Respondent having raised a number of preliminary issues I invited the Complainant to respond to these in the hearing.

On the issue of time limits the Complainant argues that she is still an employee of the Respondent. In 2019 she was suspended from work on pay. A disciplinary process was initiated but never concluded. The Respondent subsequently purported to place her on ill heath retirement. However this process is governed by national procedures and the decision to place a person on ill health retirement lies with the CMO and no one else. The Respondent failed to properly place the Complainant on ill health retirement and as such her employment has not been terminated. She remains on a form of paid suspension.

The Complainant argues that any termination would have been in contravention of the European charter of fundamental rights. As a result of the actions of the Respondent she has been moved from class A to class M for PRSI purposes and this has significantly effected her access to benefits including illness benefit.

The Labour Court ruled that reasonable accommodation was not provided to the Complainant when she was put on ill health retirement. As a result of this she believes she cannot lawfully claim or accept the pension being paid by the Respondent. Furthermore the Pensions Act of 2012 states clearly that public service employees need to consent to being placed on ill health retirement. The Complainant has never consented to this.

The Complainant refers to Labour Court determinations in PAT192 and PAT 211 brought under the Pensions Acts 1990 to 2014. She suggests the central finding of both these cases was that if the employee ignores the relevant medical advice, then they cannot claim entitlement to be granted early retirement. The Complainant suggests that the reverse also applies, that the Respondent cannot lawfully place someone on early retirement if they have failed to follow the appropriate medical advice. 

The Complainant argues that a mental disability diagnosis was imputed on her by the Respondent.  The Complainant referred to UN General Assembly resolution 46/119, Principles for the protection of persons with mental illness and the improvement of mental health care. As per this resolution the Respondent were obliged to provide a legal representative to her but this was not afforded to her. 

The Complainant argues her discrimination at the hands of the Respondent has been continuous. In January 2020 she asked them to send her a P45 but they did not do so. The declaration form regarding her pension must be signed every year.  The Complainant does not consent to her pension being paid to her but it continues to be paid.  The Respondent in doing so disregards Section 51 of the Public Service Pension Act. 

The Complainant argues that the Respondent has failed to provide suitable particulars specifying their case and in the circumstances she is entitled to summary judgment against them.

The Complainant is being harassed by the Respondent in their continuous submission of the private medical information to the Labour Court and WRC.

She argues that if the Respondent relying on her retirement being a termination they needed to provide her with the law relating to that. Article 9 of the EU Disability Directive 2000/78/ec provides that the employment equality rights exist post employment.

At the hearing I offered the Complainant until the 3rd of February to provide supplemental submissions on the preliminary issues. In the hearing the Complainant attempted to submit a document on the basis that it couldn’t be shared with the Respondent side. I explained that I could not accept any document I cannot share with both parties. The Complainant asked that I note my refusal to accept this document in this decision.

The Complainant lodged extensive documentation in response to the Respondent’s preliminary issues. Large parts of these submissions stray far from the preliminary issues identified by the Respondent and indeed from the relevant legislation. I have sought to focus on the parts that a relevant to the preliminary issues raised by the Respondent.

With regard to the above complaints the main argument regarding the preliminary issues by the Respondent is that the Complainant remains an employee of the Respondent, suspended and that the acts of the discrimination are ongoing and within the relevant time limits.

Scope of Employment Equality Acts/ Remit of the WRC:

Several of the Complainant’s complaints relate to the processing of pension payments to her on foot of her retirement on ill health grounds from the Respondent organisation on 20th May 2019. The Respondent submits that issues relating to pensions are excluded from the remit of the Employment Equality Acts.

Section 6 of the Acts states;

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one— (a) the same terms of employment (other than remuneration and pension rights),

Section 2 states;

a.“remuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment;

b.(4) In this Act a reference to “conditions of employment” does not include remuneration or pension rights

The WRC therefore lacks jurisdiction to hear complaints regarding the Complainant’s pension under the Employment Equality Acts.

It is further worth noting that matters pertaining to social security and data protection are also not properly before the WRC either under the Employment Equality Acts or otherwise.

Time Limits

The employment Equality Acts state, at S77(5) (a);

Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

The Complainant’s employment was terminated by letter dated 20 May 2019. This has been accepted by two divisions of the Labour Court. The Respondent notes that in the Labour Court’s preliminary outcome in their decision of 4th July 2022 that the Court noted that “the termination of employment falls within the terms of S77,6A(I) of the Acts, so that 20 May 2019, the last day of employment is a date on which an alleged failure to provide a reasonable accommodation is applicable”.

Furthermore, in the substantive outcome, under “deliberation” the Court notes that “The various matters under appeal to the Court all relate to the same set of facts. These all relate to the letter of termination sent by the Respondent to the Complainant on 20 May 2019, in which the decision to retire her early on the basis of medical evidence was conveyed”.

In their decision of 10th of June 2022, a separate division of the Court noted that the Complainant’s employment had ended on 20 May 2019 and found that claim to be statute barred on this basis.

It is therefore well established that a termination of the Complainant’s employment occurred on 20th May 2019. It is also well established that the last date on which a claim regarding the Complainant’s period of employment could have been made was 19th November 2019.

As the Complainant has not been employed by the Respondent since the 20th May 2019, all claims lodged after 19th November 2019 are statute barred in their entirety as no employment relationship existed upon which to ground a claim.

Res Judicata and Parallel complaints

The subject matter of the Complainant’s outstanding complaints overlaps in many areas with claims already heard by the WRC and in some cases by the Labour Court on appeal, including issues relating to the alleged imputing of a disability on the Complainant, the referral of the Respondent to its occupational health consultant’s conclusions regarding the Complainant’s health in its decision to terminate her employment and issues arising from same,  issues relating to discrimination on grounds of gender a disability allegedly related to the menopause, stress, and ENT issues, including issues relating to previous disciplinary processes, and historic grievances and other complaints, reasonable accommodation, complaints pertaining to risk assessments, data protection and her retirement on ill health grounds.

In addition, many of the Complainant’s outstanding complaints overlap with each other. For instance, several of these complaints refer to the payment of her pension, which she alleges to be discriminatory, and repeats the above referenced previously heard issues in additional complaints. The text of her complaints to the WRC seem to indicate, on one hand, that she views her multiple complaints as being distinct claims (as they are currently listed), and on the other, that the purpose of her multiple complaints is to built a “continuum” for the purpose of one claim, under the Act. These are contradictory positions.

It is a well established principle that an employer cannot be vexed twice by the same complaint. In particular, under the Employment Equality Acts, it is established that a Complainant cannot receive an award for the same set of circumstances under two headings of the Act. The Complainant has received an award with respect to the termination of her employment on 20th May 2019 as set out earlier in this submission. This matter has now been exhausted before the WRC and the Labour Court which is the final Court of fact in relation to these matters. In the same case, the Complainant attempted to bring additional items before the Court. The Court determined that such claims were not within the cognisable time period. The Complainant is now seeking a second bite of the cherry with regards to same and in addition, appears to be attempting to raise additional claims grounded on issues related to her retirement. This is contrary to the general principle that parallel complaints cannot be pursued and the Respondent submits that in pursuing circa thirty outstanding complaints, in addition to the several claims already heard, the Complainant is engaging in an abuse of process.

Section 79 Subsection (3A)  of the Employment Equality Acts states that: If, in a case which is referred to the Director General of the Workplace Relations Commission under section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including: (a) whether the complainant has complied with the statutory requirements relating to such referrals, (b) whether the discrimination or victimisation concerned occurred on or after 18 October 1999, (c) whether the complainant is an employee, or (d) any other related question of law or fact, the Director General of the Workplace Relations Commission may direct that the question be investigated as a preliminary issue and shall proceed accordingly.

The Respondent has raised a number of preliminary issues which they say effect each claim. Much of the issues which are relevant to the preliminary issues are common to all claims and as such I have considered them in general first and then considered each complaint.

The Date Complainant’s employment with the Respondent Ended

The Complainant has suggested that as a result of either the Labour Court finding in their favour of the decision of 4th July 2022 or the terms of the 2012 pensions act not being complied with by the Respondent, she remains employed by the Respondent and suspended. On review of the Labour Court decision on the 4th of July 2022 and the Labour Court recommendation on 10th June 2022 it is clear that two separate divisions of the Court have clearly determined that the Complainant’s employment ended on the May 2019 when the Respondent forced her retirement on ill health grounds. While the Labour Court decided that the Respondent’s did not comply with their obligations to consider reasonable accommodation to retain the Complainant in her role they chose to award her €10,000 rather than order reinstatement. I note the issues the Complainant raises regarding her retirement and the Pensions Act. These issues may or may no be well founded however they do not change the fact that her employment was terminated on the 20th of May 2019. In general the Complainant appears to hold the view that the if an employee is unlawfully terminated that the termination did not happen in some legal sense. This is not accurate. The Complainant’s date of dismissal was 20th of May 2019.

Scope of the Employment Equality Act

Section 77 provides jurisdiction to me to consider whether a person has (a) to have been discriminated against or subjected to victimisation,(b) to have been dismissed in circumstances amounting to discrimination or victimisation,(c) not to be receiving remuneration in accordance with an equal remuneration term, or(d) not to be receiving a benefit under an equality clause.

Section 8 of the Employment Equality Acts requires employers not to discriminate against an employee or prospective employee in regard to; access to employment, conditions of employment, training or experience for or in relation to employment, promotion or re-grading, or classification of posts.

Separately Section 14A of the Employment Equality Acts outlaws harassment of employees related to any of the ground outlined in Section 6(2) of the Acts.

Section 74 defines “victimisation” as dismissal or other adverse treatment of an employee by his or her employer….  The Complainant is no longer an employee of the Respondent so her continuing pension payments are clearly outside the scope of victimisation as outlined in the Employment Equality Acts.  

With reference to the wording of the Act, I note that Sections 8, 21, 30 and the definition of remuneration and conditions of employment contained in Section 2 explicitly exclude pension rights. I am satisfied that I do not have scope to consider pension payments under Section 77 as outlined above. In particular I note that Section 2 outlines that “pension rights” means a pension or any other benefits flowing from an occupational pension scheme.

I am satisfied that the only issues that I could have jurisdiction over under the Employment Equality Acts relate to the Complainant’s former employment with the Respondent and not their ongoing interactions. In particular the Complainant’s ongoing dispute with the Respondent concerning the receipt of her pension is outside the scope of the act.

Section 77 outlines the process for which a complaint may be decided upon by the WRC. Subsection 5a, outlines that a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence. Subsection 5b outlines the situations where this period can be extended up to a further 6 months. These clauses do not include equal renumeration claims which can concern up to a three-year period. It should be noted that the definition of renumeration explicitly excludes pension rights. 

The Complainant correctly refers to subsection 6 of section 77 which states that, where delay is  result of  misrepresentations made by the Respondent then then time shall start to run from the date that the misrepresentation is revealed to the employee concerned. However to rely on this the Complainant would need to point to an actual misrepresentation concerning a matter relevant to the Employment Equality Acts which would have delayed her from making a complaint within time. I cannot identify any  such misrepresentation identified.

The Complainant further points to Article 9 of the Directive 2000/78/EC. I have not examined this directive with regard to the position taken by the CJEU in Minister for Justice and Equality and Commissioner of An Garda Síochána v Workplace Relations Commission, Case C‑378/17. This is because following a plain reading of the text of Article 9 I see nothing which would effect the time limits already laid out in the Employment Equality Acts. Article 9 requires that a remedy is provided for victims of discrimination even after the relationship in which the discrimination is alleged to have occurred has ended. The Employment Equality Acts provides this subject to the above time limits. Time limits are explicitly allowed for in Section 3 of Article 9 which states: Paragraphs 1 and 2 are without prejudice to national rules relating to time limits for bringing actions as regards the principle of equality of treatment.

With reference to the time limits outlined in the Section 77 of the Act, I note that Complainant’s employment ended on the 20th of May 2019 I cannot consider any complaint relating to that employment referred to the WRC after the 19th of May 2020. I can potentially consider an equal renumeration complaint referred to the WRC up until the 20th of May 2022.

Res Judicata

The decision to place the Complainant on ill health retirement was considered and decided on already by the Labour Court in their decision of 4th of July 2022. I am satisfied that I cannot consider the matter again in a separate hearing.

Applying the above conclusions to the complaint in this case I find as follows.

The Complainant is not suspended from work. Her employment was terminated on 20th of May 2019. As such her queries regarding the pension being paid to her currently is outside the scope of the Employment Equality Acts. Much of this complaint seeks to revisit issues relating to the decision to place her on ill health retirement and terminate her employment. That matter was dealt with comprehensively by the Labour Court in it’s decision of 4th of July 2022 and cannot be relitigated through the WRC. For these reasons I am satisfied the complaint fall outside my jurisdiction.

CA-00048625-001

With reference to Section 79 Subsection (3A) of the Employment Equality Acts and the above submissions, findings and conclusions, I determine that this complaint fails on the basis of the preliminary issues identified.