Complainant

Respondent

Parties

Sarah  Mangan

The Courts Service

Representatives

  Self-represented

Michelle Ní Longáin Byrne Wallace Solicitors

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-00045895-002

31/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00046342-001

21/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00046342-002

21/09/2021

The Complainant commenced her employment with the Respondent on 24 August 2020 as a Clerical Officer. Her employment was terminated on 11 June 2021.

The Complainant referred a claim to the Director General of the WRC under the Employment Equality Acts, 1998 as amended on 31 August 2021 and two claims under the Payment of Wages Act, 1991 on 21 September 2021.

The Complainant represented herself and attended the hearings with her mother. The Respondent was represented by Ms Ní Longáin, Byrne Wallace Solicitors.

In her WRC complaint form the Complainant submitted as follows.

The Complainant submits that she has recently been diagnosed as autistic. She submits that she was not diagnosed as such while she was employed as a Clerical Officer, but she believes that, because she was displaying autistic traits, she was harassed and discriminated against and subsequently dismissed.

The Complainant submits that she was treated differently and badly by her Manager directly because of who she is. The Complainant submits that her Manager said that the Complainant talked too loudly, that her tone was an issue, she called the Complainant “pedantic”, and she has accused the Complainant of being impatient.

The Complainant further submits that on 10 March 2021, her Manager mimicked her mannerisms, she said that the Complainant was causing an atmosphere in the office. The Manager made the Complainant have meetings with her in the kitchen where other staff members came in and out of, she didn't treat other staff like this. When a staff meeting was held it was in a court room. The Manager also had meeting with people in her office with the door closed. The Manager regularly cut the Complainant off while speaking. On 27 January 2021, the Manager said the Complainant was not fitting in. The Manager told the Complainant that her emails were too formal.

On 13 October 2020, the Manager made reference to the Complainant having hemochromatosis in an email to HR where she asked the Complainant if she had informed HR that she had it, asked how often the Complainant had to have blood taken, and did she have to do a medical before entry into the civil service. The Complainant submits that hemochromatosis is not a disability and her Manager seemed to be confusing it as such. The Complainant submits that, even if it were, she was not obliged to inform anyone of this unless she so chose, unless she was looking for reasonable accommodation for it, which she was not.

The Complainant submits that she seemed not to be chatty enough for her Manager’s liking. On 2 November 2020, the Manager told  the Complainant that she would isolate the Complainant if she could, by putting her in a room away from everyone else. The Complainant submits that her Manager made intimidating gestures on 21 April 2021 by aggressively hitting papers in between her and the Complainant, aggressively throwing files on the Complainant’s desk.

The Manager accused the Complainant of bad customer service and preventing someone from accessing the court service which the Complainant did not, no customer ever made a complaint about the Complainant’s customer service, but a customer made a complaint about her Manager’s customer service.

The Complainant submits that on 5 February 2021, another employee pulled the blind down on a customer and told him she would have him thrown out because he was cursing while he was talking. The Complainant submits that the customer was not cursing at the employee, the curses were not directed at her. This employee did not get the same level of animosity as the Complainant did.

The Complainant submits that another employee was stopping a member of the public from making an application. The member of the public had to ring his solicitor and then say that his solicitor informed him that he could not be prevented from making the application. The employee then allowed him to make it. The Complainant submits that she didn't see any animosity toward this employee for this either.

The Complainant submits that her sick leave was an issue even though she was out on certified sick leave due to stress from how she was being treated. The Complainant submits that she did not surpass the maximum sick leave allowed. Moreover, she submits, HR has leeway in the amount of sick leave taken but the Complainant was not afforded any leeway even though she was only absent as a direct result of how she was treated. Other members of staff would have exceeded the Complainant’s sick leave and they have not lost their jobs over it. The Complainant named three employee who, she contended, were absent from work for extended periods of time.

The Complainant submits that these were the two reasons given for dismissing her, but she was held to a different standard then other staff in the office in regard to behaviour towards customers and sick leave.

The Complainant submits that one of the most serious incidents occurred on 8 January 2021 when a Court Porter let himself into the office in the morning and said, “has she been told?”. The Complainant’s office colleague got uncomfortable. The Porter then said to the Complainant that no one was to be served without a mask, that he would not be letting them into the building but if they got in, when he was not there, that the Complainant was not to serve them. The Complainant said that she could not do that as staff received an email a while back with instructions that they could not refuse to serve someone who did not wear a mask. The Porter said that he did not care, and this was the way it was, and the Complainant was not to serve them. He told the Complainant that, if it was people wanting to pay maintenance to not take it off them, instead give them an envelope with a label on it and send them away. The Complainant submits that two Executive Officers (‘EO’) witnessed this incident and one of the EOs even facilitated this by making up more of the envelopes with the labels on them.

The Complainant submits that, as her Manager was not in the office, she emailed HR to inform them of what happened and to ask what was she supposed to do, as there was previously an attempt to terminate the Complainant’s employment over apparently preventing someone accessing the court service. HR told the Complainant to check with her Assistant Principal (‘AP’). The Complainant emailed her AP, but he did not reply on that day.

The Complainant submits that later in the day a customer did come into the office without a mask on. The Complainant went to an EO and told her that she was going to serve the customer as the Respondent has not updated staff on a change and as she was nearly dismissed for apparently preventing a customer using the courts service. The Complainant said that she could not refuse to serve the customer and that she was not going to discriminate against people as the customer could have a medical condition. The EO told the Complainant that she was right to serve the customer, and that the AP needs to inform them if they were to stop serving people without masks.

The Complainant submits that she, again, got upset at work that day as it was a culmination of issues. The Porter had been coming into the office during that week giving out about people not wearing masks and how there was no excuse for it with staff agreeing with him. The subtext of that seemed to be aimed at the Complainant as she did not wear a mask in work due to asthma and dermographic urticaria and she found it too difficult to do. All the staff in the building were aware of this as at a meeting in September 2020 where they were told masks are not mandatory, the Complainant communicated her issues with it in front of everyone. This attitude had never really gone away, with staff also telling the Complainant that she could just put on a mask on one occasion.

The Complainant submits that she witnessed multiple encounters of discrimination against people who were not wearing masks.

The Complainant submits that at a work meeting on the 11 December 2020, after she expressed concerns about sitting in a draft, her Manager asked her if she was getting the Covid-19 vaccine.

The Complainant submits that she was deliberately excluded from the work WhatsApp group. A student who had been on placement had even been added to this group but the Complainant was not.

The Complainant submits that the Respondent was aware of how she was being treated, the harassment could be reasonably anticipated, but the Respondent did not take reasonably practicable steps to prevent her from being harassed. The Complainant submits that it is the employers’ responsibility to prevent the perpetrator from harassing the victim and prevent the victim from being treated differently during the course of their employment. The Complainant submits that the Respondent knew since November 2020 that she was being treated differently but it took no reasonably practicable steps to reverse its effects and did not investigate her complaint.

The Complainant submits that the Respondent has a Dignity at Work Policy but she does not believe that it was implemented properly, no investigation was conducted let alone properly or fairly. The Assistant Principal, HR, the Personnel Manager, the Internal Appeals Officer and the CEO were all aware of the harassment, at varying stages, during the Complainant’s employment and did not investigate or ask her anything about the events. It was an intimidating, hostile, degrading, humiliating and offensive environment towards the Complainant.

The Complainant submits that she informed the Respondent that her mental health was being affected and this was ignored. The Complainant was not offered to be sent to the Chief Medical Officer (‘CMO’). The Complainant submits that she cried in a meeting with HR and her Union representative, and her Manager still tried to have a meeting with the Complainant and with an individual who was well known to her, but not known to the Complainant, on extremely short notice.

The Complainant submits that she changed her shifts to accommodate another staff member on a number of occasions because she was unable to work, but yet she was accused of not working well with others.

The Complainant submits that her PMDS was not completed by her Manager. The Complainant completed her end of the year review on 10 December 2020 and subsequently did not receive her new goal setting PMDS on 12 May 2021 like the rest of her colleagues (except one colleague who also did not receive it but he was transferring to another employer). The Complainant investigated why she did not get it. It transpired it was because her Manager had not completed the one the Complainant sent her in December 2020. The Complainant submits that PMDS had to be completed in order to comply with probation and in order to receive any incremental credit possibly due.

The Complainant submits that, in her appeal, she had indicated that her probation was not conducted fairly and pointed out how her PMDS was not dealt with. This was ignored even though it was on the system in black and white.

The Complainant submits that she phoned while on annual leave on 18 May 2021, after getting her termination letter on 14 May 2021 and she was told that she was not expected in the office. She was told that, if she wanted anything personal, to contact the Assistant Principal in order to make an arrangement. The Complainant submits that she was blindsided by this as her termination letter said the termination date was 11 June 2021 and she still had the keys to the courthouse. The Complainant submits that she had to contact HR and ask them how the keys were to be returned as no one had looked for them back. The Complainant was not comfortable having state property in her possession as she was no longer an employee.

The Complainant submits that her mental health was still being affected by what she experienced during her employment. The Complainant submits that submitting her complaints has been extremely distressing as she had to relive these painful experiences in doing so and relive the fact that she tried to get help by saying what was happening and was ignored and fired which has just caused feelings of isolation and mistrust.

The Complainant submits that her employment was terminated directly on the character assassination of a woman who repeatedly harassed her and because the Complainant was absent due to stress caused by the actions she had to endure.

A supplemental written submission was received from the Complainant on 27 June 2022.

The Complainant submits in her supplemental submission that she is a member of a protected class under the disability ground, the Complainant is autistic. Autism is a neurodevelopmental condition which is regarded as a disability, it has many co-morbidities such as anxiety which the Complainant also suffer from. Autism is defined as difficulties in social communication and restricted repetitive and or sensory behaviours or interests, it is present since birth, the Complainant has always been autistic and she has always displayed various autistic traits/stereotypes, they were not hidden. The Complainant submits that she also suffers from asthma, dermographic urticaria and hemochromatosis. 

The Complainant submits that she was discriminated against as she was treated less favourably than another person in a comparable situation, because of her disabilities. This is in contravention of the Employment Equality Act 1998.

The Complainant submits that autism is a way of being, it is not possible to separate autism from the person. Every interaction the Complainant has is dictated by autism because it is how her brain works.

The Complainant submits that “Assisting People with Autism. Guidance for Justice Professionals in communicating with people with autism” states that psychiatric disorders are a common feature among people with Autism Spectrum Disorder (‘ASD’). The prevalence rates vary but about 70% of children are estimated to have a psychiatric co-morbidity, of which the most common is anxiety. The Complainant lists the following characteristics of autism: use formal, stilted or pedantic language, be honest to the extent of bluntness or rudeness, appear to lack empathy, find it difficult to hold a two-way conversation.

The Complainant submits that the Respondent would state that the Complainant was not aware that she was autistic and, therefore, how were they supposed to know. The Complainant submits that she has known she was autistic her whole life. She has known the “label” autistic since 2010. The Complainant was formally diagnosed in July 2021. However, it does not mean that she was not aware of it before.

The Complainant submits that the bullying she endured from the Respondent is why she pursued a formal diagnosis, as although self-diagnosis is accepted as valid in the ASD community, it would not be widely accepted as valid. The Complainant contacted her GP in November 2020 about getting a diagnosis. As the HSE does not diagnoses ASD, the Complainant had to do it privately.

The Complainant submits that while she was engaging with the Civil Service Employee Assistance Service (‘CSEAS’), they were also aware of her being autistic.

The Complainant submits that, from her understanding of the law, telling an employer of a disability including mental health difficulties is a personal choice and not required by law. However, in order for an employer to provide reasonable accommodations to an employee with a disability, they must be informed of the disability. The Complainant submits that she did not think that not being bullied because of who she is was a reasonable accommodation that would be required for her to look for. The Complainant submits that everyone had the right not to be bullied and to be treated with respect and dignity free from harassment.

The Complainant submits that an employer must be able to demonstrate that it had no actual or constructive knowledge of the employee’s disability (such as signs, symptoms, indication) in order to demonstrate that it was not aware of the employee’s disability if there were clear indications that e.g. an employee was suffering from depression. The Complainant submits that the Respondent knew that she was suffering mental health wise.

The Complainant submits that the Respondent was informed of her asthma and dermographic urticaria on 7 September 2020. She declared this to a room full of people including the Assistant Principal. She informed the Respondent that she could not wear a mask because of this illness. This disclosure did not stop her getting bullied and harassed over it. The Complainant informed a staff member of her hemochromatosis. The staff member then informed her Manager (HEO) about it, who then informed HR. The Respondent also knew the Complainant was suffering from stress as she was absent due to stress from the bullying and harassment. The Complainant informed HR of this in an email. The Complainant submits that there were clear indications that she was suffering from anxiety. There was absolutely no doubt that her mental health was being affected and the Respondent was aware of this through meetings with HR, her certified sick leave due to stress, and the Manager’s own notes. The Complainant was crying in a meeting with a HEO from HR and with her Union Rep because of how she was being treated.

The Complainant submits that her Manager in her notes described the Complainant as stressed, anxious, sullen and defensive. In a note on 13 January 2021 the Manager stated: ‘she sounded anxious and upset’. These notes were shared with HR and the Internal Appeals Officer and the Appropriate Authority, the CEO.

The Complainant submits that the Respondent had constructive knowledge that she was autistic. There were signs, symptoms and indications, her colleagues stereotyped her. The Complainant’s Manager complemented the Complainant’s ability to do the job and stated that her tone was an issue. The Complainant told her in this meeting that ‘that’s just how my brain works’. In the Manager’s note on this meeting she states: ‘She noted that is her way. She doesn’t mean anything by it, but that is the way she speaks.’  The Complainant also said this to colleagues in the office when they would make comments about her. The Complainant regularly spoke about autism and explained autistic traits. When the Complainant told her Manager that a behaviour of  a child related to her was something that autistic children do, she did not like that. The Complainant submits that her Manager would have an understanding of what autism is as her husband has family members who are autistic. The Complainant submits that she knows this because she knows people related to her husband. The Manager also would have been made aware of the “Assisting People with Autism” policy.

The Complainant submits that the Respondent and its staff understand what autism is. ‘Assisting People with Autism’ subheading ‘Guidance for Justice Professionals in communicating with people with autism’ was produced by the National Disability Authority for justice professionals including the Respondent. The guide states:

‘ this guide meets the commitments in the programme which states that the NDA will develop guidance for the Justice system on engaging and supporting people with autism who come into contact with the system.”

The Complainant submits that she came into contact with the system through her employment with the Respondent. This policy explains characteristics of autism under social interaction, social communication, social imagination and sensory difficulties headings. In this policy under social communication heading it is stated that pedantic language may be used by an autistic person. The Complainant submits that her Manager called her “pedantic”. The Manager does not have a very substantial vocabulary, she used basic language while communicating, the word “pedantic” was not part of her common vernacular. The word “pedantic” is a word solely used to insult someone, it is a derogatory word for autistic people, a slur. Hans Asperger (a Nazi scientist who is associated with the discovery of autism) used the term “pedantic” in classifying people as autistic. “Pedantic” has been associated with autism since its discovery.

The Complainant submits that the blatant stereotyping of her in her Manager’s notes should be sufficient evidence that she was aware of the Complainant’s disability. The Complainant submits that she was sure that her Manager did not tell other colleagues who are not autistic that she wanted to put them into a room on their own where they cannot interact with other people because they 'don't work well with others', are 'causing an atmosphere' or have a 'tone'. The Complainant submits that her Manager told her that she did not fit in. The Manager mimicked the Complainant’s supposed mannerisms in a meeting in which the Complainant had to tell her to stop. The Complainant was told that her tone was a problem, that she talked to loudly. The Complainant regularly spoke about autism and its characteristics as her nephew is autistic e.g. 'my nephew is so intelligent he's high functioning, he is in mainstream school but he has issues socially and finds it hard to interact with people'. The Complainant had regularly displayed sensory issues at work e.g., the microphone caused a painful screech when wind would interfere with it, this was a daily occurrence. The Complainant was asked if she always spends a lot of time on her own, does she always go for walks on her own with her dog (‘appear to be indifferent to others or socially isolated’).

The Complainant submits that she displayed auditory processing issues at work by being unable to hear co-workers when their mouth was covered with a mask, they would have to remove it when speaking to her. The co-workers kept remarking on her intelligence and how neat and organised she was. The Complainant does not make eye contact as easily as neurotypical people, she looks at peoples’ mouths or look away when they are speaking so she can process what they are saying.

The Complainant submits that her Manager implied that she was uncaring and unkind which is another stereotype of autism, lack of empathy. The Complainant submits that she did what she was told to do, she was told to watch listen and repeat. When she did this, she was told she was wrong for doing so. The Complainant likes set rules and showed this, she queried why some people were allowed start work before 8am (according to the Manager who states in her notes states that she doesn’t mind) but it is against policy and people are not to be awarded time towards working hours for work commenced before 8am. The Complainant queried the dress code infringements. She also queried sitting in a draft as she was aware that there are health and safety laws in relation to minimum temperatures required for working indoors.

The Complainant submits that these are all examples of ‘like set rules, and overreact to other people’s infringement of them’.

The Complainant submits that her Manager described her as ‘obstinate’ (‘become agitated in responses or come across as argumentative or stubborn’). The Complainant would comment regularly on who changed the position of her chair. She was told by a Clerical Officer that it was the Manager as she would sit in the Complainant’s chair when the Complainant was not there. The Complainant stimmed by making paper ornaments that she decorated her desk with. When she came back into work the following day these had been removed from her desk. The Complainant queried this and was told that the cleaners probably threw them out.

The Complainant submits that the National Disability Strategy Implementation Plan (NDSIP) 2013- 2015 set out a programme of actions for implementation by government departments and public bodies with the goal of ensuring a whole of government approach to advancing the social inclusion of all persons with disabilities, including those with autism. The Respondent would be committed to this plan. If the Respondent denies any knowledge of autism characteristics and traits, it denies it implemented policies it committed to.

The Complainant submits that’ Autism Awareness.ie’, presentation and resource centre on autism for the public service is funded by the Department of Justice and Equality under the Disability Awareness Scheme 2015. It was designed to give public service staff an opportunity to increase their knowledge about autism, to give a general overview and raise awareness of the condition. The Department of Justice and Equality has responsibility for providing a focal point for the promotion and co-ordination of disability policy. In this context the Department of Justice oversees the implementation of the strategy and the accompanying Programme of Additional Actions on Autism. Oireachtas.ie further shows that the Respondent which is under the Department of Justice is aware of autism.

The Complainant submits that she was bullied throughout her employment and she was harassed by her Manager and other members of staff. The following is a brief description of the bullying she endured. The Complainant contends that it also shows that she was harassed by unwanted conduct relating to her disability, being unable to wear a mask, which created an intimidating, degrading, humiliating and offensive environment for her. These were verbal attacks which were derogatory such as calling her ‘pedantic’, written harassment by emails, calling her ‘manic’ etc., isolation attempted by her Manager to put her in a room away from everyone, and exclusion from a work WhatsApp group. Moreover, intimidating behaviour by the Porter who let himself into the office (which he was not allowed to do; the Complainant  was told by a senior member of staff because he was technically not employed by the Respondent) and verbal harassment, such as gestures or threatening poses, visual displays such as of posters saying ‘no mask no entry’. It also included excessive monitoring of work by the Manager, eavesdropping on the Complainant’s conversations, asking who she was talking to on the phone but then not giving her any constructive feedback, unreasonably changing the Complainant’s job content or target.

The following is a list of bullying incidents by the Manager:

·        On 24 August 2020, the Complainant’s first day at work, the Manager told the Complainant that the staff had flexi time when they did not. The Manager did not provide the Complainant with access to the printer which is the most basic thing the Complainant needed to do her job.

·        On  2 November 2020, the Manager told the Complainant that, if she had somewhere else to put her, like in a room on her own with no interactions with other people she would, but she checked and, unfortunately, there was no room.

·        The Manager was aggressively hitting papers in between her and the Complainant, telling the Complainant that her customer service was not good enough and that she was having the Complainant’s employment terminated. The Manager said that she was having the Complainant fired (not that it was a recommendation). She also told other staff members that the Complainant was fired.

·        The Manager called the Complainant ‘pedantic’ in front of everyone in the office.

·        The Manager teased/mocked the Complainant in front of everyone in the office when a customer complimented the Complainant’s hair.

·        The Manager and a Clerical Officer multiple times would roll their eyes at the Complainant and make gestures with their hands while doing this, during conversations in the office.

·        On 29 September 2020, the Manager told the Complainant that her outfit was inappropriate. This was a camisole type top with a white blazer over it, black pants and black shoes, which complies to the Respondent’s dress code. When others violated dress code they were not reprimanded because they continued to do so up until March 2021.

·        During the week of 14 October 2020, the Manager kept cutting the Complainant off when she asked any question, she started assuming the Complainant was saying something which she was not, and she raised her voice at the Complainant. The Manager told the Complainant that her email responses to customers were too professional and formal. On one occasion, the Complainant was on a phone call to a customer who was very annoyed on the phone. The Complainant told him that he needed to fill out an application, he was getting irate, and the Complainant told him that she was not a solicitor and she was not legally trained, and that she was not telling him what to do, it was up to himself what he chose to do. The Manager overheard part of this conversation and told the Complainant not to talk to customers like that even though the Complainant was mimicking what she has heard colleagues say, which was what she was told to do. The same customer came into the office that day and apologised to the Complainant for his behaviour on the phone, the Complainant told him it was ok, not to worry about it. He needed help filling out the application so the Complainant helped him. The Manager called the Complainant away from the counter and told her not to help him and to send him away. There were many occasions where the Complainant was told to give people in the same scenarios different levels of help.

·        On 28 October 2020, the Manager accused the Complainant of bad customer service. A woman wanted to make an application to the court, she had been in previously and was returning with her application. The Manager would not accept the typed-up version of an application from the woman as it did not have a harp on it (even though she told her to get it typed up and it would be fine). The woman became extremely annoyed as she had to redo the application again. The Manager has used this incident to have the Complainant fired. By accusing the Complainant of preventing the woman access to the court service when it was, in fact, the Manager who would not accept the application, not the Complainant. The Manager also accused the Complainant of roaring at the woman and implied that the Complainant was calling the woman stupid which she absolutely did not. This woman did not make a compliant about the Complainant’s customer service. In reference to a note that the Manager sent to HR in relation to this, if the Manager heard heighted voices that were getting louder until it became a roar why did she or anyone that was in the office not intervene? If this event took place, like described by the Manager, a HEO, an EO and COs let the Complainant roar at a woman and not one person intervened.

·        In relation to this incident, the Complainant submits that later there was a bunch of applications left on the counter, they were there for a while so the Complainant asked people if they knew anything about them. The Manager said that she left them there to be put into appropriate pack (but she did not tell the Complainant). These applications did not have a harp on them, but this was the exact reason the Manager gave for not accepting the lady’s typed up version of the application and now she wanted them put into a pack to hand out to customers.

·        On 2 November 2020 and 27 January 2021, the Manager tried to coerce the Complainant  into leaving her by job by falsely telling her that she would go back on the public jobs panel if she left.

·        On 30 October 2020, the Complainant could not get an answer whether she would get time off for an appointment. An EO told the Complainant to make her appointments outside of work hours going forward. The Complainant submits that the EO was aware that it was a consultant appointment in a public hospital and that the Complainant had no control over this. The EO said that she had to ask the Manager (HEO) for permission even though the Manager was not supposed to be the Complainant’s line manager.

·        On 9 November 2020, the Manager told the Complainant not to do her induction as she would not be working there. HR had not told the Complainant that she was fired or given her an end date.

·        On 16 November 2020 a meeting with HR and the Complainant’s Union rep was held where the Complainant said that it was a personal dislike of her that had motivated the Manager into trying to fire her. The Complainant communicated that she was being unfairly treated as she could not wear a face covering. The Complainant outlined various other bullying incidents.

·        The Complainant accidentally found out that her EO was no longer on her ‘Clock’, as the Manager had taken it over and not informed her. This happened after the Complainant had already told HR about the incidents that happened and how it was a personal issue with her. However, HR allowed the Manger to become her line manager. The EO was supposed to be her line manager, and the one supposed to carry out PMDS and probation.

·        On 17 November 2020, the Manager responded to the Complainant’s email saying that all requests for leave will have to go through her.

·        On 19 November 2020 at a meeting with the Manager and the HR person, the Manger said to the Complainant that she heard that the Complainant thought it was personal. The Complainant confirmed this.

·        The Manager tried to force the Complainant into wearing a visor, even though she had previously said that she could not wear face covering due to medical issues. HR intervened and said that the Complainant could not be forced into wearing one.

·        The Complainant did not appeal the recommendation (as required by the guidelines) because her Union representative told her that it was gone away, that he had been speaking with HR and that it was agreed that the Manager did not act appropriately. HR are also supposed to follow through on sending the recommendation to terminate if it is not appealed. That is another policy that was not followed properly.

·        On 20 November 2020, 27 November 2020, 4 December 2020, 11 December 2020, 11 January 2021, 12 January 2021, 27 January 2021 and 3 February 2021, the Manager held assigned weekly meetings in a communal space in the kitchen where other staff members were in and out of during them. The staff members that were in the kitchen at these times included the Assistant Principal and the Clerical Officer. The Complainant believes this was an intimidation tactic to prevent her from being able to voice any concerns she had.

·        On 9 December 2020 a staff meeting was held in an empty court room not in a communal space. The Complainant was not afforded the same privacy. However, meetings before the Manager tried to have her fired were in empty court rooms, then after she failed to get her way, meetings were held in a communal space.

·        On 11 December 2020, during a meeting with the Manager, the Complainant said that she could not keep sitting in a draft. The Manager told her to wear more clothes. She also asked would the Complainant take the Covid-19 vaccine.

·        The Complainant returned to work on 23 December 2020. The Manager was not at work but she left a message for the Complainant to ring her. She told the Complainant that she was not allowed to leave work until the EO had completed the lodgement. This was done to intimidate the Complainant as the straw that broke the camel’s back. The Complainant was on sick leave because of a Clerical Officer shouting at her and telling her what time to work until and how long to take for her lunch so she could work until later in the evening.

·        The Complainant has been excluded from the work WhatsApp group. The Complainant exhibited a WhatsApp screen shot of a message of 3 January 2021.

·        On 11 January 2021, during a meeting with the Manager, when telling her of issues with staff members she started smirking at the Complainant and told her that she shouldn’t have told a Clerical Officer that “it was none of her business”. When the Complainant told the Manager that it felt like people were trying to get rid of her, the Manager told the Complainant that, if she wanted her gone, she would be gone.

·        On 27 January 2021, at the back to work meeting, the Manager told the Complainant that she did not fit in and asked was the Complainant really happy there. She wanted to stop the meetings. The Complainant told her that HR would have to be consulted on that, as the weekly meeting had been assigned by HR. The Manager said that, if the Complainant left, she would go back on the panel. The Complainant submits that it was the same stunt she tried the first time she tried to get rid of the Complainant, even though she knew this to be false.

·        The Complainant told the Manager that she did not think that holding the meetings in the kitchen was appropriate.

·        The Manager dismissed bullying incidents that the Complainant told her about as minor and said  that the Complainant could not go on sick leave every time something like that happened. The Manager kept trying to coerce the Complainant into saying that she was not happy to be working there. The Manager told the Complainant that she would give her until next Wednesday to have a real think about it. She said that the Complainant has been missing a quarter of her time there, which she had not.

·        On 3 February 2021, the Manager said that she was not happy with the Covid situation in regard to the Complainant as she could not wear a mask.

·        The Manager sent an email to HR saying she wanted the Complainant’s probation terminated. She recommended the Complainant’s employment to be terminated after the Complainant raised the incidents of bullying on the 27 January 2021.

·        On 8 February 2021, the Manager told the Complainant that she could not ask another HEO questions. The Complainant was in the office on her own for most of the day, the Manager was in and out of the office. The Complainant messaged her at one point as she had a query regarding customers she was dealing with. A HEO happened to be in the room at the time. As the Complainant was aware that the HEO had previously worked in family law, she felt it was ok to ask her for advice on the matter. The HEO gave the Complainant advice on the matter, and she relayed this to the customer. Later in the day the Manager approached the Complainant and told her not to ask the HEO questions in relation to family law.

·        At 10.30am the Manager sent an email saying that she would have the Complainant’s probation meeting in the afternoon with a named staff member attending. This was very short notice. The staff member named was known to the Manager but not to the Complainant as the Manager apparently previously worked with her. An hour later the Manager said that she would have to reschedule it.

·        The Complainant was told that her clothing was inappropriate, but a staff member wore white runners and jeans into work on a Wednesday which is a court day and that is against the dress code.

·        On 19 February 2021, the Manager was cutting the Complainant off and did not answer her question.

·        On 10 March 2021, during a meeting with the Manager, the Complainant confronted her on her behaviour towards the Complainant. The Manager said that she did not know that he was a hairdresser in relation to the customer complimenting the Complainant’s hair, like that was a valid excuse for her behaviour. She started to mimic the Complainant in this meeting  and the Complainant had to tell her to stop it. The Manager pretended she did not know about the work WhatsApp group that the Complainant had been excluded from even though she was a member of the group. The Complainant also asked her why she thought it was ok for her to ask the Complainant about her private medical business, she didn’t answer this.

·        On 21 April 2021, the Manager aggressively threw files on the Complainant’s desk while she was on the phone to a customer, a CO commented on it. This was a regular behaviour.

·        On 12 May 2021, the Complainant did not receive notification or link to do PMDS as the Manager had not completed her previous one, the completion of these was a necessary part of the Complainant’s probation.

The following is a list of bullying incidents by a named Clerical Officer

·        On 2 September 2020 the CO shouted at the Complainant when she tried to join in a conversation she was having with another staff member, she waved her finger at the Complainant and rolled her eyes and continued to talk to the other staff member.

·        On the 9 September 2020, the CO shouted at the Complainant again stating that wearing masks is about respect and having respect for other people, thus insinuating the Complainant did not as she could not wear one.

·        An EO asked the Complainant to come down to the court room. The CO told the Complainant that she could not go down the other stairs and ‘you could just put on a mask’. This was after the discussion with the Manager and HR, and it was still happening. The CO also made countless comments about how comfortable the masks were. The Complainant believes these were snide and directed at her.

·        On 15 December 2020, the CO and an EO had a conversation the Complainant was not involved in about what time to finish work. The Manager had informed staff at a meeting that the Assistant Principal was not happy because no one was in the office until 4.30pm and that someone needed to be there. It was brought up in that meeting that staff did not have flexi time (as in they could not build up time on the clock) and if they were in at 8am and stayed until 4.30pm what would happen to the extra time worked. The Manager told staff to take a longer lunch. The CO asked the Complainant at what time did she come in that morning and said to the EO that the Complainant could ‘do it’.  The EO asked was that ok with the Complainant and she said that it wasn’t. The CO immediately started to lose her temper and shouted ‘No, she can do it’. The Complainant said that she was going to look into the issue with flexi time because if she worked over her hours, she was not getting paid for it and she would not get it back on the clock. The CO said that the Complainant was being ridiculous and that she could take a longer lunch. She kept demanding that the Complainant worked late so they could go home earlier. The Complainant had to tell her it was none of her business. She then said sarcastically ‘well obviously she is too busy I’ll have to do’. The EO allowed this conversation to continue and let the CO raise her voice at the Complainant and make sarcastic comments. Another CO witnessed this conversation but was not involved in the conversation. This conversation was to pressure the Complainant into working later, it was not a discussion or colleagues coming to an agreement together, as if it was the other CO would have been asked. The Complainant left the room, when she came back it was clear that the CO was giving out about her as they all went quiet when the Complainant came back into the room. Both the Complainant and the other CO stayed on late that evening. The Complainant submits that her clocking out times show that she had frequently worked until or past 4.30pm, very possibly more so than other staff members since she had started. As these altercations have been affecting the Complainant’s mental health, she rang her doctor on the way home from work. She was out from work from 16 December and back on 24 December 2020.

·        On 11 January 2021, the Complainant told the Manager about the issue with the Porter and about the issues with the CO. The Complainant said that she was uncomfortable talking to the Manager about the CO as the Manager was friends with her. The Complainant alleged that while the Complainant was describing one of the incidents about the CO going on a tirade about wearing masks, the Manager was smirking. The Complainant submits that when she told the Manager about the CO demanding that she worked until a certain time and that she had to tell the CO it was none of her business, the Manager said that she shouldn’t have said that to the CO.

The Complainant submits that she was harassed when the AP, knowing that she was not able to wear a mask due to medical reasons put the Respondent branded masks on her desk. At a meeting with the AP, the Complainant told him how she was not happy about the way she was treated. He said that it was not for him to deal with. The Complainant submits that, on advice from her Union rep, she asked him to give it to her in writing that staff don’t have flexible time, he refused to. The Complainant submits that the AP’s email to her in which he states that she raised concerns about her fellow workers shows that she raised bullying incidents again before it was recommended that her employment was terminated.

The Complainant submits that she was harassed by the Porter when he demanded that she did not serve people who were not wearing masks. She was also harassed by him when she was dealing with a customer and he verbally attacked a customer who was struggling to breath because he had his mask down trying to catch his breath. The Complainant submits that she also thinks it was harassment when he started to ask her to provide the names of customers who were not wearing a mask.

The Complainant submits that she met the requirements of the job at the time and she was unfairly dismissed. The Manager’s notes state:

‘I commended her on her ability to grasp the workings of our busy section. How confident she was in her own ability. How I didn’t think I had ever met a new recruit who was able to pick it up so quickly.’

‘I also mentioned how impressed I was with her ability to grasp work practices and procedures quickly.’

The Manager assessed the Complainant as having her work performed accurately and effectively (YES) . Work is of good quality, well executed, and meets deadlines (YES). Demonstrates the required ability to perform all the duties of the role (YES).

The Complainant submits that, according to the Respondent, her employment was terminated for the following reasons: her attendance record and her capability. The Complainant contends that she did not surpass any maximum limits of sick leave as per sick leave policy. She also contends that nothing was said about her customer service since 28 October 2020. She was given no training and was left unsupervised to run the whole office by herself. If her customer service ability was so egregious it would not make sense for her to be given this responsibility.

The Complainant submits that she changed her shifts to cover for a CO who couldn’t come into work, she helped out the Circuit Court significantly even though it was not her section and yet she got fired because she did not work well with people.

The CEO stated in the termination letter regarding the Complainant’s attendance: ‘Had this been the only factor raised by Sarah’s line manager, I would have been inclined to continue her appointment on probation and monitor her progress to the conclusion of the probationary period. It is however coupled with a more serious factor.’

The Complainant submits that, according to the Probation Guidelines there is a maximum uncertified sick leave of 3.5 days. She contends that she was absent for 1.5 uncertified days. There is also a maximum of 23 days certified sick absence, she was absent for 22 certified days. The Complainant contends that she did not exceed allowable limits and the record proves this. The Respondent did not follow the policy if this were the true reason for her dismissal.

The Complainant submits that the Policy also states regarding short term illness absences, “absences exists and it is causing a problem, satisfied themselves that the problem is unlikely to get better in the long run”. The Complainant contends that, if she was not bullied, it would not have been happening. According to the Policy, the Respondent is also supposed to consider if attendance is attributed to a medical condition, consideration should be given as to whether that person has a disability under the Employment Equality Act. The Respondent did not consider this. Stress and mental health being affected are often considered disabilities.

In relation to the more serious factor in question, an alleged incident of bad customer service, the Complainant submits that it is alleged because it was based on the Manager’s opinion. There was not one complaint made by customers about the Complainant or her customer service. The Complainant stated numerous times that the alleged incident did not occur the way the Manager stated it did, this was not investigated, the Complainant’s side was ignored.

The Complainant submits that there were no more accusations of her competence being an issue since she was falsely accused of bad customer service in October 2020. She wasn’t given any training to complete on this. She was also not mentioned in any meeting notes. Any training the Complainant did do was down to her initiative. The Manager never asked or told her to do any, her own notes and the fact that no tasks were assigned to the Complainant to do on her probation forms prove this.

The Complainant submits that she did her PMDS, but the Manager did not do her part of it. The Complainant’s PMDS was completed in December 2020 and still not signed off on when she was dismissed. The Complainant submits that she pointed this out in her appeal but the Internal Appeals Officer ignored this even though compliance with  PMDS is a requirement of probation.

The Complainant submits that she did not get procedural fairness. She was not given a Performance Improvement Plan, she was not given a timeframe to improve competence. She was not given any warnings about her conduct or competence since October 2020. Warnings should lapse or be expunged from the record after a certain period of time, they cannot remain indefinitely.

The Complainant submits that no colleagues made a complaint about her either, and if they did she was not informed of it which is her right to be, if she was going to be recommended to be dismissed over it. The Complainant submits that she had contradictory evidence from a colleague who stated that she was not causing an atmosphere, and it was not fair how she was treated. The Complainant submits that she informed the Respondent of this too, but it was ignored.

Regarding performance related problems, the Complainant submits that an employer must be able to show how the problem came to light, that it was investigated why performance is not up to scratch, clearly warn employee that their performance is falling short, counsel employee, and offer assistance.  If there is no improvement, an employer must show that it was investigated why there was no improvement and give final warning. An employer must show evidence of failure to meet standard and provide evidence to the employee giving them a chance to respond and make a case for his retention in employment. The Complainant submits that this did not happen. The Manager’s notes and assessments show that the Complainant performed the job well. She was never told that any meeting she had was a disciplinary one. The only meetings the Complainant  had were probation meetings. However, if the probation meetings were deemed to be disciplinary ones, the Respondent had a duty of best practice to fully investigate circumstances of alleged offence, carry out investigation prior to taking disciplinary action, give the employee the opportunity to defend themselves against the charge, ensure parity/equality between employer and employee at any hearing . The Complainant submits that delay in carrying out an investigation may unfairly prejudice the employee’s chances of defending themselves and render the dismissal unfair. It is essential that an employee is also told that they have the right to representation at any disciplinary hearing.

The Complainant submits that, at her first meeting after she was told that she was dismissed in November 2020, HR attempted to have a meeting with the Complainant but did not inform her that she was allowed to  have someone with her.

The Complainant also submits that at the last meeting with her Manager, she was not told she could have someone at it, but the Manager had a colleague well known to her at it. This was a probation meeting.

The Complainant submits that, if dismissal is to be considered even while an employee is on probation it is best practice to hold a disciplinary meeting, she did not get one. Disciplinary procedures for new entrant civil servants serving in a probationary capacity Circular 04/2019 state that all new entrants are entitled to a disciplinary process to be conducted in a fair and equitable manner in accordance with the principles of natural justice. The Complainant relied on points 4.1, 3.1, 4.3,  and 4.9 of the Circular.

The Complainant submits that the choice of the Respondent to take disciplinary action against her in dismissing her because she had “higher rates” of sickness absence were discriminatory as she was absent due to bullying induced stress.

The Complainant submits that, in the case of dismissal on grounds of sick absences, the Respondent should obtain medical advice as to whether the problem would continue, the Respondent should have an up-to-date medical opinion prior to dismissing. The Complainant submits that HR knew that she was absent due to stress, that it was due to bullying. The Respondent did not once consider its duty of care to her. The Respondent could have referred her to the Chief Medical Officer but it did not. Also, the Respondent did have a duty of care to the rest of the staff members if it believed the Complainant to be ‘manic and full of rage’ as falsely alleged in the Manager’s email to HR. The Complainant contends that the Manager was trying to come up with some valid reason for recommending terminating her employment. If this were the case and the Respondent believed this,  it most definitely should have discussed getting a medical opinion.

The  Complainant submits that she made a bullying complaint. She submits that the Dignity at Work Policy was more appropriate than the Grievance Policy. The Complainant submits that she tried a more informal approach, she spoke to the Manager, the AP and HR who were all aware of the issues. She then proceeded to a formal approach. Her complaint was made in writing and the Manager did get a copy of it. No other steps were followed by the Respondent that she was informed of, her complaint was ignored.

The Complainant submits that the Dignity Policy states that not all steps have to be followed in a linear fashion. The Complainant complained to HR in November 2020, HR were aware of the issues, and this was within the 4 months’ timeframe. The outcome of this was not to dismiss the Complainant but for her and the Manager to have weekly meetings which the Complainant was told were to support her in her probation. The Complainant said that she was never told these were disciplinary. The Complainant asserts that they were used as a tactic of further bullying. The Complainant submits that her Manager had told everyone in the office she was dismissed and when this did not happen, she was left embarrassed and vengeful. The Complainant contends that she made statements following this that her mental health was being affected, this was ignored. The Complainant submits that she then asked how to make another complaint about her Manager and she was told by HR that she could do this in her appeal of the recommendation to terminate her employment.

The Complainant submits that she made a bullying complaint accompanying her appeal as she was told by the HEO in HR. The Head of HR accepted the complaint as she had it for nearly a month before she submitted it to the Internal Appeals Officer. The Complainant submits that, as per the Appeal Guidelines page 2 Step 2:

‘The Human Resources Manager will, within 5 working days, request the Internal Appeals Officer to provide a recommendation on whether or not the probationer’s appointment should be terminated.’

The Complainant submits that the Internal Appeals Officer acted with bias and ignored information provided by the Complainant on her application. She also communicated with the HEO in HR asking her if there would be an oral hearing when it was the Complainant’s understanding that, as per the policies, that was for her to determine not HR. She did not answer the Complainant’s request for an oral hearing, so in effect denied it.

The Complainant submits that the HEO in HR told the Complainant’s Manager what to put in her six month probation assessment form. It was the Manager’s job to assess the Complainant, not HR’s. The Complainant questioned how she could be fairly assessed by a woman from HR who had never worked with her.

The Complainant submits that she suffered detriment as she was dismissed, she was intimidated with weekly meetings in the communal kitchen with other staff coming in and out of during them. The Complainant stated in her appeal that this was a personal attack against her. She contends that bullying continued and she again brought it to the attention of superiors but it was ignored. The Complainant’s health was affected. It was pure vindictiveness and retaliation. The Respondent used the Complainant’s sick leave as a reason for terminating her employment but her sick leave only amounted to that because she was being bullied and harassed.

The Complainant submits that she requested her data from the Respondent and found an email thread between the HEO in HR and an industrial relations specialist who was employed by the Respondent, who commented whether the Complainant’s sick leave increased dramatically due the Manager’s influence and questioned why the Manager made the assumption that the Complainant did not work well with others, why did this change on the assessment forms between the three month one and the six month one along with other interesting comments. The Complainant submits that the Respondent should have taken into consideration what a specialist was saying and investigate fully. It appears that the Respondent used this as a reason for dismissing the Complainant.

The Complainant submits that she also came across email threads, discussions while she was still on sick leave. HR, the Regional Manager and the Complainant’s Manager had a lot of discussions about her without engaging with her. It appears to the Complainant that the purpose of these discussions was to manufacture a reason to terminate her employment. 

The Complainant submits that there were also a lot of lies in the Manager’s and the HEO’s notes. In particular, stating that it was discussed with the Complainant that the Manager would be her line manager. The Complainant submits that she only found out about this after these apparent discussions had happened. The Complainant submits that she sent an email to both her Manager and her Union representative in this regard.

The Complainant submits that the CEO, the Appropriate Authority has statutory discretion in whether or not to terminate an employee, she does not have to go along with the Manager’s or the Internal Appeals Officer’s recommendation.

The Complainant submits that the initial allegation about her conduct appears to have arisen in October 2020 and consisted of a discrete incident where she was alleged to have been less than patient with a member of the public. While this allegation, if correct, is something what the Respondent was entitled to address with her, the contents of the notes of meetings between the Complainant and management from November 2020 to March 2021 indicate that this issue had been addressed. Therefore, it appears unfair that the Respondent in making the ultimate decision to dismiss, and indeed the decision to reject the appeal against dismissal, took into account an issue which had been addressed and dealt with by the Complainant. In this regard the Complainant relies on the decision of the EAT in Richardson v H Williams & Co. Ltd UD/17/1979.

Regarding a letter from the Manager dated 18 November 2020 to senior management at the Respondent, the Complainant submits that the Manager made clear her “frustration” at the failure of the Respondent to act on her recommendation that the Complainant be dismissed. It is clear that the Manager was, at the time of writing this letter in November 2020, quite annoyed at the Respondent having decided not to dismiss the Complainant. This raises obvious questions regarding the fairness of the subsequent process of assessment of the Complainant given the Manager’s ongoing involvement in that process.

The Complainant submits that the case law highlights the fair procedures that an employee being assessed as part of their probation is entitled to. It is arguable that the process used in the Complainant’s case was biased and therefore not in compliance with fair procedures. Further, the Complainant was not given forms required as part of the process until after they were due. This represents a further breach of fair procedures.

The Complainant submits that some of the matters for which she was criticised in documents subsequent to November 2020 appear to be somewhat hard to define. An employee in the position of the Complainant is entitled to know what accusations they face or what criticisms of their performance are being made.

The Complainant submits that the Internal Appeals Officer’s report states that “it is not part” of her role as reviewer to comment on claims regarding the relationship between the Complainant and her Manager. This would appear however to be a misunderstanding of her role given the central contention by the Complainant that is that the review process conducted by her Manager was biased and unfair.

The Complainant submits that in an email from an industrial relations specialist to the HEO in HR dated 15 March 2021 various criticisms/observations were raised regarding the review conducted by the Manager and follow up questions asked. It is unclear what action was taken to address the issues raised in this document, however, the document itself highlights many of the fundamental criticisms that can be made of the review process.

The Complainant submits that the Respondent informed her that her employment was terminated by email on the 14 May 2021. This letter stated that the last date of employment was 11 June 2021. The Complainant submits that the Respondent did not have the decency to inform her in person. It sent this email at the end of the week when the Complainant was on annual leave on the following Monday and Tuesday. On Tuesday 18 May 2021, a HEO from HR rang the Complainant and told her not to come into work anymore, that she was not required to work the 4 weeks’ notice.

The Complainant submits that she said that she was being bullied and sick of the way she was being treated. The Manager’s notes confirm this where they note “Sarah says all her issues are with me”, the AP’s email also confirms the Complainant did this. The Complainant submits that it was on foot of airing these issues that she was recommended to be dismissed and subsequently unfairly dismissed.

The Complainant submits that Clerical Officers’ core competencies such as interpersonal skills and working well with other people are discriminatory towards autistic people because they are defined from a neurotypical viewpoint and do not consider other variations of communication by different members of society. The Complainant submits that she was capable of doing the job, she followed the relevant codes e.g. Civil Service Code of Standards and Behaviour which states:

·        6.1 Never act in a manner which they know, or suspect, is illegal, improper or unethical.

·        6.2 civil servants who have doubts about the legality of a particular action which they ARE required to take in course of their official duties should refer the matter to their superiors whose responsibility it is to issue a direction on the matter, following legal advice where necessary.

The Complainant submits that she asked about the legality of preventing someone accessing the courts and refused to discriminate. When she did this, she was dismissed.

·        10. ensure non-discriminatory language is used in all communications, both internal and external, including display material and documents in electronic form, and not to engage in any outside business or occupation during their normal hours of duty.

The Complainant does not believe that her Manager abided by this when she called the Complainant “pedantic”, “manic”, “full of rage”, “obstinate” etc. in an email HR. The Complainant does not believe staff members abided by this when they displayed signs around the Court House saying “No Mask, No service”, which they had to remove.

·        12. Civil servants should show due respect for their colleagues at work, including their values and beliefs…. Ensure their behaviour towards colleagues is appropriate in the workplace…

·        15. legal duty to not discriminate observe policy on harassment sexual and bullying.

The Complainant does not believe her comparators - her colleagues adhered to these policies in the way they treated the Complainant.

The Complainant submits that she was treated less favourably when it was not clear who her Manager was. The EO was no longer managing her, instead the Manager who was bullying her was made her line manager.

The Complainant submits that HR conspired with the Manager, they did not act impartially, they treated the Complainant less favourably and also engaged in bullying her.

The Complainant submits that all the regular customers seem to like her, and there had never been a complaint made about her. The Complainant submits that customers said that she was really helpful and complemented her service to her EO. Some members of the public requested to speak to her on the phone as she has been so helpful to them before.

The Complainant submits that her comparators show examples of their bad customer service. In that regard, the Complainant described in detail some 11 examples. 

The Complainant submits that Covid-19 weekly emails were discriminatory as they continually stated staff should wear a mask but did not relay the message that some staff are not able to and this needs to be respected. They also show that there were repeated questions about staff and customers wearing masks, so the Respondent was aware that issues were arising with staff clearly attempting to discriminate but it was allowed to continue.

The Complainant submits that when she raised a health and safety issue about sitting in a draft, her Manager turned the conversation into an attack on her because of Covid-19 issues and started to interrogate her on whether she was going to take the Covid-19 vaccination. This had absolutely nothing to do with the Complainant raising a genuine health and safety concern. The Complainant knew there were minimum temperature requirements when working indoors. The Manager decided to turn a genuine concern into a highly inappropriate line of questioning, it was none of her business what medical treatments the Complainant took, she had no right to ask. The Covid-19 email stated that vaccination is a personal medical matter and it did not have to be discussed and staff did not have to tell their manager if they were taking it or not. This email was sent after the Complainant made a complaint in her appeal, so HR did act on parts of her complaint.

The Complainant submits that she was not given fair procedures or natural justice. The Respondent did not follow its own policies. The Complainant was never informed she was being disciplined, and she was dismissed without disciplinary procedures begin followed. That does not appear to be reasonable or acceptable.

The Complainant submits that “bad customer service” was an excuse when there had been no complaints about her. She was never required to do training and it was not commented on again after October 2020, but used as an excuse to dismiss her nearly 6 months later.

The Complainant submits that she did not surpass sick leave allowances. As per policy self-certified sick leave was max 3.5 days while on probation, the Complainant was absent for 1.5 days. The half day was when she was told by her EO and other staff to go home because she became extremely dizzy at work. As per policy, certified sick leave was max 23 days full pay/23 days half pay while on probation. The Complainant submits that nowhere in the sick leave form did it state that the days were a combined amount, quite the opposite, they were distinct from each other. The Complainant submits that her total absence was 1.5 days self-certified and 22 days certified. The way that document was worded suggests that the certified sick leave would allow a maximum of 46 days sick leave while on probation. The Complainant had a total 23.5 days absent combined self-certified and certified. The Complainant was put on half rate pay for a half day, which would further suggest that the total certified is 46 days. It also could be construed that the maximum combined self-certified and certified is 49.5 days while on probation. The Complainant submits that she repeatedly stated that she did not surpass sick leave allowances but this was ignored.

The Complainant submits that her comparators’ sick leave shows that she was treated less favourably. The Complainant described the alleged sick leave and health conditions of her co-workers, she conceded that she was not aware if the conditions they suffered from were a disability for the purposes of the Acts. The Complainant argues that she was not treated fairly in her termination based on sick leave. The Complainant submits that the above shows that she did not exceed sick leave and that she was no more unreliable than her comparators.

The Complainant submits that her probation was not conducted in the same way as the other two staff members on probation. They did not have to have weekly meetings in a communal space. Neither of these two employees were members of a protected class to the Complainant’s knowledge. When they showed poor customer service, they were not reprimanded or dismissed over it. They also did not actually complete a full probation timeframe of one year. They successfully completed probation without doing a full year’s probation. The Complainant submits that these employees could not be judged fairly in comparison to her when they were not in the office or working for a significant amount of their probation time. The Complainant had a significantly longer probation period and her L&D courses were brought up by HR while assessing her. The Complainant contends that she had done more L&D courses than another CO. She also had previous experience as a Temporary Clerical Officer for approx. 8 months. She had 17 months tenure as a civil servant when she was dismissed which was longer than either of the two employees.

The Complainant submits that her Manager asked the HEO in HR what to put in her probation assessment. This was not fair, she did not request this for assessments of either of the two other employee on probation. The Complainant submits that she could not be fairly assessed by a woman from HR who had never worked with her.

The Complainant submits that she was accused of not working well with people. She disagrees with this. The Complainant listed a number of examples of her working well with other people such as help provided to colleagues in the Circuit Court, an offer of a lift to work to a colleague, creating labels for the most common solicitors post was sent to, colour coordinating files, rearranging overcrowded files, making an appeals pack to hand out to customers, switching working days with colleagues, covering for a colleague who was unable to attend work, etc.

The Complainant submits that she was victimised because she told the Manager, and her AP that she was bullied, and HR that she was under stress. She was also victimised because she refused to discriminate against people and because she was being bullied. Although the Respondent will say that she was not victimised as people who cannot wear masks are not a protected category under the Employment Equality Act, the Health Act exempts people who suffer ‘serve distress’, this can be construed as a disability as it is impacting mental health, it can be classed as an anxiety disorder. The Complainant submits that she acted within the spirit of the Employment Equality Act and the integrity it tries to enforce. All people are entitled to avail of government services and not be refused access for no reason.

The Complainant submits that on 8 January 2021 an employee demanded that she did not serve customers who were not wearing a mask. The Complainant contacted HR about this incident and told them how she was finding working in that environment extremely stressful and she was out sick due to stress because of a CO’s behaviour towards her. She was told to talk to her Manager.

The Respondent has vicarious liability. It did not try to prevent bullying and harassment towards the Complainant. It allowed the mask issue to continue.

The Complainant submits that it is clear from the lack of training provided to her that the Manager was always going to fire her. The letter referred to above also says how the Manager understood that from HR that letting someone go was a bad time due to Covid-19 and Christmas but, surely, sooner was better than later. The Complainant asserts that there was nothing she could do, it was planned and decided on by the Manager in conjunction with HR that she was being dismissed. This does not show fair procedures. This is also why the Manager did not sign off on or have a discussion with the Complainant about her PMDS.

The Complainant submits that she was treated differently because she is autistic. Autism affects every interaction she has with people. She would not wear a mask / face covering but there are exemptions in the Health Act for people who are unable to do so. The Complainant met the criteria for such an exemption. She was not breaking the law, the Respondent also did not have a mandatory policy in place for face coverings to be worn, but in effect by its actions it had such a policy.

The Complainant submits that she can establish a prima facie case as she is a member of a protected class, she is autistic. She met the Respondent’s legitimate job performance expectations. She did her job extremely well as per her Manager’s own notes. She suffered an adverse employment action. Her employment was terminated and she was bullied and harassed, her mental health has suffered. The Complainant was also without a reference for further employment. She is also hindered in being employed when she has to explain what happened and why she is no longer employed with the Respondent.

The Complainant submits that other employees, her comparators were treated better than her. They were not verbally insulted in front of everyone in the office, they were not pulled up on dress code policy violations when they violated them, they were not teased when a customer complimented them in front of everyone. They were all in the work WhatsApp group which the Complainant was excluded from. They were not harassed over their ability to wear a mask/face covering. Other similarly situated employee outside of the Complainant’s protected class received better treatment from the Respondent. In that regard,  the Complainant named two COs and an EO. She further submits that another named EO was not dismissed or disciplined when she shouted at a customer, told him she would have him removed from the building and pulled the blind down on him and stopped serving him. In comparison the Complainant argues that she was dismissed  because she told a customer her address was needed on the application.

The Complainant submits that her employment was terminated by a woman who said she would isolate her away from everyone if she could, called her “pedantic”, “obstinate”, “manic”, “tearful”, “sullen”, “defensive”, and “full of rage”.

The Complainant submits that she was told that she was not allowed to go into certain parts of the office because she couldn’t wear a mask, was stopped being allowed into the courtroom because she couldn’t wear a mask, was told “you could just put on a mask”. The Complainant submits that she suffered an excessive amount of anxiety due to this. As far as she was aware there was another woman who was out due to possible anxiety/OCD and was offered early retirement. The Complainant did not get the same treatment of being offered meetings in a private setting, they were in the kitchen. She was prevented from doing her job like other people without a disability by not allowing her into the court room because she couldn’t wear a mask.

The Respondent did not consider whether it needed to make reasonable adjustment to the workplace particularly if an employee’s absence record, sickness record or delay in returning to work is due to or linked with their disability.

The Complainant submits that she was sick due to her disability, because she has social communication and sensory differences, she was bullied and harassed because of this her mental health suffered and that is why she was absent.

The Complainant submits that the Respondent could have referred her to the Chief Medical Officer but it didn’t bother, which according to its policies it should have done, and according to the statutes it also should have. The probation guidelines state on page 9 section 27 state:

“Poor attendance due to medical consideration given as to whether that individual may have a disability as defined under legislation HR manager should consider their obligation under EEA to provide…”

Honesty and integrity are core competencies required by the Respondent but in practice they are not wanted. The Complainant submits that she acted with integrity and honesty and was told she did not work well with people because of it. She was supposed to make her bully aware of their behaviour by the Dignity at Work Policy and, again, when she followed this, she was told she did not work well with people. When she offered her own ideas and perspectives, she was called “pedantic”.

“Can be firm when necessary and communicate with confidence and authority. Understands steps and processes that customers must go through and clearly explain these”- the Complainant submits that she was told it was not her job to do this.

The Complainant submits that PMDS is the mechanism for identifying training and development needs and for facilitating access to promotion opportunities and increments. A fixed-term employee is entitled to access promotion opportunities and increments on the same basis as their comparable permanent employee.

Section 10(3) of the Act requires employers “as far as is practical, to facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility”.

Performance management and development systems PMDS “it is recommended that Goal setting be completed by all staff and that their performance should be reviewed against these goals, whether over the short or longer term, in line with normal arrangements under PMDS”. The Complainant submits that her Manager did not continue with her PMDS in line with the above policy.

The Complainant submits that the CEO also showed no allowances for people as she stated that there is absolutely no reason to speak loudly to a customer, she clearly does not make allowances for people with auditory issues, on either the employees’ side or the customers’ side. The Complainant submits that this statement shows a clear lack of understanding or willingness to have employees with disabilities. Speaking loudly is also not defined, it is a personal opinion.

The Complainant submits that this repeated bullying was linked to the fact that she is autistic and suffering co-morbid anxiety. The Respondent failed in its obligation under the Employment Equality Act to prevent discrimination and harassment. Therefore, the Respondent is subject to vicarious liability' as it did not take reasonable steps to prevent discrimination. The Respondent knew that she was being discriminated against because she could not wear a mask and knew that she was being bullied because of a personal dislike of her which arose from her disability. The Respondent did not take reasonable steps to prevent it. The Respondent, in fact, helped encourage it through the Covid-19 weekly emails. The Complainant submits that HR knew about the mask issue and also knew that the Complainant thought there was a personal issue against her from her Manager. HR gave the Manager more control over the Complainant by taking her off her EO who would do her clock etc. and giving it to the Manager. The Complainant was also the only person in the office who had to go to the HEO for annual leave or anything to do with the clock, etc. She was treated less favourably and was left isolated with a woman who, the Complainant said, was motivated by a dislike of her.

The Complainant raised a query whether her replacement was someone without a disability or was it a relative of a named employee who allegedly was next on the list for a position in Limerick.

The Complainant submits that civil service departments have made commitments to have a certain percentage of staff with a disability. The Complainant queried whether the Respondent did meet these commitments.

The Complainant submits that the list of incidents and evidence above show that what happened to her was repeated inappropriate behaviour by multiple staff members, during the course of her employment. These undermined her right to dignity at work. These resulted from her disability.

Remedy

The Complainant submits that, although she indicated in her original complaint that she was open to reinstatement or reengagement, she no longer was. She seeks compensation. The Complainant submits that, after receiving her personal data from the Courts Service, it was clear that it is not a feasible option to be reemployed given that, even from the organisational level of HR they also treated her very unfairly. As the Respondent is a small organisation with a limited HR department, she would never be given a fair unbiased or indiscriminatory chance if she was reinstated or reengaged.

Relevant Legislation Employment Equality Act 1998

The Complainant relies on sections 6(1), 6(2). 6(2)(g), 8(1), 8(4), 8(6), 8(7), 14, 15, 16, 26, 28, 31, 32, 35.

Relevant Case Law

The Complainant submits that the case of Hurley V An Post 2018 and McCarthy V ISS Ireland Limited 2018, both have elements of what happened to her. Irish Postmasters Union v a Worker found for the claimant as the Postmasters Union didn’t follow its own disciplinary procedures or the ones in the Code of Practice on Grievance and Disciplinary Procedures SI no 146 of 2000.  McNally v Tesco Ireland UD80/2015 EAT found dismissal unfair due to “significant procedural unfairness”, particularly as there was a seven month delay in arranging for the employees appeal hearing. The EAT noted in particular that “the claimant had not had a witness or was unaccompanied during some meetings”. The EAT noted that the disciplinary hearing was held the same day that the investigation process was completed and that the employee only received key evidence the same day. In Park Hotel v Employee,  the employee was dismissed while on probation but the Labour Court found they were entitled to fair procedures.  In Dunnes Stores v Guidera, the employee was out sick for 2 years, the employer met with her independent medical adviser but they didn’t wait for a specialist doctor’s opinion, so the employer lost their case. In Frizelle v. New Ross Credit Union, the High Court set out the basic requirements of fair procedures and natural justice in the context of a workplace procedure. In that case, the Court stated that an employee must be provided with the allegations against them and have an opportunity to respond. In O'Donoghue v Emerson Electric (Ireland) Ltd UD 177/86 the EAT held that an employee was unfairly dismissed where it was shown that the targets he was alleged to have missed were not adequately advised to him in advance. In Richardson v H Williams & Co. Ltd UD/17/1979 the EAT held that an employee may legitimately be informed of and reprimanded regarding standards of behaviour. However, where the complained of matters have been resolved, the warning issued cannot form the basis for dismissal. In Bolger v. Showerings (Ireland) Limited [1990] E.L.R. 184 the High Court held that an employer who dismisses for absenteeism must show (1) It was the ill-health which was the reason for his dismissal; (2) That this was substantial reason; (3) That the employer received fair notices that the question of his dismissal for incapacity was being considered and (4) That the employee was afforded an opportunity of being heard.

Post hearing medical evidence

On 8 March 2023,  the Complainant furnished a letter dated 9 July 2021 and signed by Dr Kieron Merriman of the Adult Autism Practice and addressed to the Complainant, which stated:

“This is to confirm that you meet the DSM-5 criteria for Autism”.

Summary of direct evidence and cross examination of the Complainant

At the adjudication hearing, the Complainant gave direct sworn evidence by essentially reiterating the contents of her written submission.

In cross examination, the Complainant confirmed that she was on probation from 24 August 2020.

The Complainant was asked if she informed the Respondent of her disability and requested reasonable accommodation. She said that at a meeting at which mask wearing was discussed, she told the Respondent about her diagnoses of haemochromatosis, asthma and dermographic urticaria. She did not need reasonable accommodation for that as she was not required to wear a mask. The Complainant was asked whether she told the Respondent that she had autism and she confirmed that she did not. She confirmed that her claim is on the grounds of a disability, namely autism.

The Complaint was asked if she made a complaint of bullying, she said that she did under the Dignity at Work Policy when she made her appeal. She said that the HEO in HR told her she could appeal the termination and complain together.

The Complainant said that it was unclear if the Manager was her line manager but she agreed that she was the HEO. It was put to the Complainant that her Manager told the Complainant that she was good at some jobs but the Manager had concerns regarding dealing with the public, that the Complainant had tendency to be impatient. The Complainant replied “roughly” but did not elaborate. It was put to the Complainant that when she was told that she was impatient with customers, she replied that it was her way. The Complainant replied that she speaks like she speaks, it does not mean anything.

It was put to the Complainant that her Manager suggested that she requests a customer service course. The Complainant said that she has done such courses. She agreed that if she dealt with a difficult customer, she could talk to an EO.

It was put to the Complainant that she seemed annoyed on the day when the incident with a customer occurred. It was put to the Complainant that her voice went louder until it became a roar. She said that it did not happen. She agreed that the Manager called her to the office and asked her to explain what happened. It was put to the Complainant that due to Covid-19 restrictions, the Manager could not close the office doors and spoke quietly. It was put to the Complainant that the Manager reminded her to keep her voice down, speak in a calm and peaceful manner, and reminded the Complainant of their conversation of 13 October 2020. The Complainant replied “roughly”.

The Complainant denied that she suggested to the Manager that maybe customer service was not for her and that the Manager said that it was up to the Complainant.

The Complainant agreed that a full time Forsa official became involved when the Manager recommended that the Complainant’s probation be terminated. She agreed that he met with HR. The Complainant denied that it was agreed that a plan be put in place and the Manager would become her line manager. She confirmed that it was agreed that weekly meetings would be held between her and the Manager with notes to be taken. The Complainant did not dispute that the Manager spoke to her about her absences but she disputed the number of days she was absent.

The Complainant confirmed that she availed of the Employee Assistance Service.

It was put to the Complainant that her Union representative met with the Personnel Officer and spoke about a transfer to a different office. The Complainant said that the Union official told her that there is a position in Nenagh, but the Complainant told him that the Respondent could give her a position in Ennis.

It was put to the Complainant that a recommendation was made to terminate her employment in March 2021 after her 6-month probation and the letter of 22 March 2021 referred to a potential termination. The Complainant confirmed she received the letter.

The Complainant confirmed that she was informed about and appealed the decision to dismiss her on the basis that she has not been treated fairly and her probation has been conducted poorly. The Complainant confirmed that she appealed the decision of the Internal Appeals Officer to the Appropriate Authority. The Complainant confirmed that she received the letter of 13 May 2021 from the Personnel Officer.

Closing remarks

In her closing remarks, the Complainant said that she was bullied and harassed. She said that she was exceptional, her Manager assigned autistic characteristics to her. The Respondent should have sent her to the Chief Medical Officer. She said that she asked to change a desk because of draft, and she was not allowed. She said that she made an informal complaint that she would not discriminate against a customer who was not wearing a mask.

The Complainant confirmed that the Respondent paid her the outstanding monies in relation to the increment due. However, she said that she did not spend it.

BACKGROUND

On 31 August 2021, Ms Sarah Mangan (the “Complainant”) submitted an application for adjudication to the Workplace Relations Commission (the “WRC”) under the Industrial Relations Act 1969 (the “IR Acts”) and the Employment Equality Acts 1998-2015 (the “EE Acts”).

The complaint under the IR Acts was dismissed by the Labour Court on 15 March 2022. The Labour Court determined that it did not have jurisdiction to hear the complaint as the Complainant was deemed “a person employed by or under the State” under section 23(1)(a) of the Industrial Relations Act 1990, and as a result, was excluded from taking a complaint under section 13(9) of the IR Acts.

In relation to the complaint under the EE Acts, the Complainant alleges that she was harassed and discriminated against by the Respondent due to her disability.

The Respondent submits that the Complainant was not harassed or discriminated against in any way. The Respondent has at all times acted lawfully, reasonably and respectfully in respect of the Complainant. Where a concern was raised, either by the Complainant or in respect of the Complainant, the Respondent submits that it made every effort to resolve these issues insofar as it could do so, and in the absence of the Complainant having pursued any internal procedure during the course of her employment. The Respondent addresses the allegations of harassment and discrimination in this submission by setting out its treatment of the Complainant, the concerns raised in respect of the Complainant’s manner of communication and the Respondent’s multiple attempts to engage and manage the Complainant throughout her probation.

On 21 September 2021, the Complainant submitted two further complaints under the Payments of Wages Act 1991 (the “1991 Act”)

FACTUAL BACKGROUND

The Complainant commenced employment with the Respondent on 24 August 2020 as a Clerical Officer in a court office. On commencing employment, the Complainant was placed on a probationary period of 1 year, in accordance with her contract of employment and the DPER Probation Guidelines dated 8 February 2019 (the “Guidelines”). As set out in the Guidelines, probation is the process of assessing the performance of new entrants to the Civil Service. During probation, a new entrant’s performance is fully evaluated so that the right decision is made as to whether or not he or she should be made permanent in the Civil Service.

On commencing employment, the Respondent conducted an induction process for the Complainant. While no official in-person training courses took place due to the Covid-19 pandemic, as is normal for new recruits, the Complainant received on-the-job training on commencement and throughout her employment to enable her to perform her role (relevant documents were exhibited at the hearing). The Respondent managed the Complainant appropriately throughout the course of her employment and monitored her performance. For example, the Respondent agreed on a list of learning goals with the Complainant on 13 October 2020 (exhibited at the hearing). This set out the purpose of the Complainant’s role; to provide administrative support to the Courts and to provide customer service to members of the public using the Courts Service.

The Respondent also provided the Complainant with informal constructive feedback throughout her employment and conducted a number of formal probationary review meetings with the Complainant. Meetings were held to review the Complainant’s performance as part of the probationary process on 20 November 2020, 27 November 2020 (3-month review), and on the 10 March 2021 (6-month review). The Complainant’s line manager, initially recommended termination of the Complainant’s probation on the 2 November 2020, by email to HR. However, following a meeting between the Complainant, the Manager and HR on the 19 November 2020, a plan of weekly meetings was put in place to give the Complainant another opportunity to improve her performance. Weekly meetings between the Manager and the Complainant took place on 20 November 2020, 27 November 2020, 4 December 2020 & 11 December 2020, and on the 11 January 2021, 12 January 2021, 27 January 2021, & 3 February 2021. The Manager recommended termination of the probation at the Complainant’s 6 month review on the 10 March 2021 (the foregoing documents and emails were exhibited at the hearing).

At the three month probation review on 27 November 2020, concerns were raised with the Complainant regarding her ability to perform all the duties of the role. Her general conduct was found to be unsatisfactory, and the overall assessment was deemed unsatisfactory. In relation to overall conduct and behaviour, a serious incident of customer service that was not in line with the standards established in sections 8.1 and 8.2 of the Civil Service Code of Standards and Behaviour (exhibited) was noted as per the Complainant’s three month review form (exhibited). It was agreed with the Complainant, HR and the Manager that weekly meetings would begin where clarification and feedback would be given in an effort to manage the remainder of the Complainant’s probation.

At the six month probation review on 10 March 2021 (exhibited) concerns were raised regarding the Complainant’s ability to work well with colleagues and as part of the team. It was also found that the Complainant did not comply with the sick leave requirements. Her general conduct and overall assessment were found to be unsatisfactory. It was confirmed to the Complainant by letter dated 22 March 2021 (exhibited), that her Manager recommended to HR the termination of her employment, and that this would be considered by the CEO. The Complainant was informed of her right to appeal this recommendation.

The Complainant appealed the decision of the Manager by letter dated 30 March 2021 (exhibited), alleging that (a) her probation had been conducted poorly and she did not receive the Probation Review Assessment forms in a timely fashion and (b) she did not receive adequate training.

In a decision dated 30 April 2021 (exhibited), the Appeals Officer made the following findings:

(a)    “Finding: I do not agree with Ms. Mangan’s assertions that (a) the Probation was conducted poorly and she did not receive the Probation review assessment forms in a timely fashion.” In making this finding, the Appeals Officer noted the meeting reports submitted, training and on the job learning and support from the Complainant’s colleagues in respect of providing good customer service. Feedback was given to the Complainant on a regular basis about her verbal and written communications with customers. The Complainant availed of formal training which was available to her and this was sufficient for her to become adept at the non-customer facing tasks assigned to her, such as cash receipting and issuing orders. She had daily opportunities to observe her colleagues and line manager interacting with customers.

(b)   “Finding: In relation to Ms. Mangan’s assertions that (b) she did not receive adequate training, it is my opinion that Ms. Mangan did receive adequate training.” The Appeals Officer stated that she was satisfied that the matters of induction and training had been approached fairly and appropriately so as to provide the Complainant with the opportunity to understand her role within Limerick court office and the expectations of her line manager.

Accordingly, the Appeals Officer was satisfied that the Complainant’s probationary process was conducted fairly and comprehensively. The Appeals Officer endorsed the recommendation of the Manager and recommended that the Complainant’s appeal be determined unsuccessful. The Complainant’s employment was terminated on 11 June 2021.

Throughout the process, the Complainant had the benefit of representation by a recognised and major trade union. With a view to providing the Complainant with a “fresh start” in another location the Complainant was offered the option of transferring to another location of the Respondent in Nenagh, but this option was not taken up by the Complainant.

DISABILITY DISCRIMINATION: FAILURE TO ESTABLISH A PRIMA FACIE CASE

The Complainant asserts in her complaint form that the Respondent discriminated against her due to her disability and that this occurred by way of dismissal, harassment, victimisation and because she opposed discrimination.

The Respondent strongly rejects that it has discriminated against the Complainant on any basis including disability.

Section 2 of the EE Acts defines “disability”. The Complainant states that she suffers from the following medical conditions in her complaint form:

“I have recently been diagnosed as Autistic. I was not diagnosed as such while I was employed as a Clerical Officer, but believe because I was displaying Autistic traits I was harassed and discriminated against and subsequently fired.”

“She also made reference to me having Hemochromatosis in an email to HR asking me did inform them I had it asking how often I had to have bloods taken, did I have to do a medical before entry into the civils service this was in her note from the 13/10/2020. Hemochromatosis is not a disability [the Manager] appears to be confusing it as such.”

“[Porter] had been coming into the office during the week giving out about people not wearing mask[s] in e.g. the post office story and how there is no excuse for it with staff agreeing with him the subtext of that seemed to be aimed at me as I didn’t wear a mask in work as I have asthma and dermographic urticaria and I find it too difficult to do.” [sic]

The Respondent submits that the Complainant has failed to prove that the Respondent discriminated against her due to her disability. In this regard, section 85A(1) of the EE Acts states:

“(1) 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, in order to demonstrate that the Complainant has received less favourable treatment and that the less favourable treatment arose from her disability, the Complainant must first establish a prima facie case of discrimination. The issue of this evidential obligation has been clearly set out in the leading Labour Court decision in Southern Health Board v Mitchell, [2001] E.L.R. 201. The Court considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination can be made out.

“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.”

This test requires that the facts relied upon by the Complainant must be proved by them to the satisfaction of the WRC or court at the level of balance of probabilities. Even if this is proven, it must be of sufficient significance as to raise an inference of discrimination. The mere difference in gender or in treatment cannot in itself provide a sufficient evidential basis upon which to raise a presumption of discrimination. The Respondent submits that the Complainant has failed to satisfy either of these requirements.

In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court warned that "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn."

The Complainant makes a number of assertions throughout her complaint form alleging that the Respondent, in particular, her line manager discriminated against her due to her disability. For example, in her complaint form she states “I was treated differently and badly by my manager directly because of who I am” and “My employment was terminated directly on the character assassination of a woman who repeatedly harassed me and because I was absent due to stress caused by the actions I had to endure”. The Respondent submits that at no point in her complaint does the Complainant establish facts, beyond speculation, that support the assertion she was discriminated due to her disability.

The Complainant refers to the issue of mask wearing in her complaint. The provision of court services to the public is an important public function. During the relevant period (August 2020 – March 2021) Covid-19 continued to pose a significant risk to public health. As such, the Respondent had a duty to protect the general public and courts service users in line with the prevailing public health advice at the time.

Lack of actual knowledge or imputed disability

Moreover, the Respondent was not on notice of the Complainant’s diagnosis of autism prior to or during her employment. In fact, the first time that the Respondent became aware of this was when it received the Complainant’s complaint form. As highlighted in Specialist Staff Nurse v Health Care Provider ADJ-00020984, in order to be in a position to establish a prima facie case of discrimination, the Complainant must establish that the Respondent was on notice of the disability and dismissed on that basis. The Adjudication Officer stated in this case:

“to summarise in order to establish a prima facie case of discrimination, the Complainant must satisfy the Adjudicator that the Complainant was a person with a disability at the time material to his claim. And if that is met, then the Respondent was on notice of the disability and the Complainant was dismissed on grounds of their disability”.

As the Complainant was not diagnosed with autism until after her employment terminated, the Respondent could not have had actual knowledge of same and could not have discriminated against her as a result.

The Complainant further contends that she was discriminated against as autistic traits were imputed to her prior to her diagnosis. In this regard, the Complainant states “I have recently been diagnosed as Autistic. I was not diagnosed as such while I was employed as a Clerical Officer, but believe because I was displaying Autistic traits I was harassed and discriminated against and subsequently fired. I was treated differently and badly by my manager because of who I am. She said I talked too loudly, she said my tone was an issue, she called me pedantic, she accused me of being impatient. She mimicked my mannerisms on 10/03/2021, she said I was causing an atmosphere in the office. She made me have meetings with her in the kitchen where other staff members came in and out of she didn’t treat other staff like this when [a] staff meeting was held it was in a court room and she had meeting[s] with people in her office with the door closed. She regularly cut me off while speaking. She said I wasn’t fitting in 27/01/2021. She told me my emails were too formal.” [sic]

The Respondent submits that as it was not on notice of the Complainant’s disability, it did not impute a disability to the Complainant, or treat her differently as a result of her disability. Notwithstanding the fact that the Respondent disputes the allegations set out above and in the Complainant’s complaint form, the Respondent submits that it could not have known, and did not know, that the personality traits referenced by the Complainant were indicative of any disability, including autism. To assert that the Respondent had imputed a disability to the Complainant on the basis the Complainant “talked too loudly”, was called “pedantic” and “impatient” is stretching a point too far and is not sufficient evidence to support that a disability has been imputed to the Complainant. The decision of the Equality Tribunal in An Employee v An Employer, DEC-E2012-057 is instructive in this regard. In this case, the complainant submitted that even if the respondent was not on notice that the complainant was a person with a disability, it had imputed a disability onto the complainant by referring to the complainant as being 'nervous'. The complainant in question suffered from mental health difficulties that were diagnosed as including anxiety, depression and post-traumatic stress. The Equality Officer rejected the argument that the employer had imputed a disability onto the complainant and found that an acknowledgement that a person is 'nervous' amounting to a prima facie case of an imputed disability was “stretching a point too far”. A reference to a common human trait was not sufficient evidence to support that a disability had been imputed onto the complainant, and stated “it is clear to me that many people are nervous in new situations, such as when starting a new job, and I find that such nervousness is often a 'normal' reaction experienced by people regardless of their protected status.”

Similarly in Thomas Joyce v Poundland Limited t/a Dealz, ADJ-00028841 the WRC found there was a lack of medical evidence supporting the connection between an overactive thyroid gland and a loud voice. As a result, the WRC could not impute knowledge or responsibility to the respondent for not knowing that the complainant had an overactive thyroid gland and that this condition could lead to a loud voice.

Taking the above cases into account, the Respondent submits that the Complainant has not demonstrated how any potential traits referenced in her complaint form could be characterised as autism. The Respondent did not have knowledge or hold a belief that the Complainant suffered from autism.

The Respondent was on notice of the Complainant’s other diagnoses of haemochromatosis, asthma and dermographic urticaria. However, the Respondent wholly rejects the assertion that it treated the Complainant less favourably than other employees on in this basis, nor has the Complainant established this.

Comparator/no less favourable treatment

A complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. The Respondent submits that the Complainant has failed to identify a suitable comparator. The Respondent submits that on this basis alone, the Complainant’s claim cannot succeed.

For example, the Complainant states in her complaint form

·        “…no customer ever made a complaint about my customer service but a customer made a complaint about [named employee] customer service to the Courts.”

·        “[named employee] also pulled the blind down on a customer and told him she would have him thrown out because he was cursing while he was talking he was not cursing at her on the 5/12/2021 she did not get the same level of animosity that I did.”

·        [named employee] was also stopping a member of the public from making an application under Domestic Violence he had to ring his solicitor and then say that his solicitor informed him he cannot be prevented from making the application, she then allowed him to make it. I didn’t see any animosity towards her for this either.”

·        My sick leave was an issue even though I was out due to stress from how I was being treated…other members of staff would have exceeded my sick leave and they have not lost their jobs over it. [named employee]. [named employee] and [named employee] were absent from work for [extended] periods of time.” [sic]

None of the above allegations were reported to the Respondent by the Complainant or any other person in the organisation. The Respondent submits that these allegations are not verified and disputes the Complainant’s reliance upon them to demonstrate less favourable treatment. Even if these allegations could be established as facts, the Complainant has failed to demonstrate how they indicate less favourable treatment as a result of her disability.

As highlighted above by way of background, the Complainant’s employment was terminated by the Respondent by reference to her failure to comply with the Respondent’s probationary conditions contained in the Guidelines. The Respondent is not only entitled to ensure compliance with the Guidelines but must as a public sector employer, ensure that the employees complete their probationary period to a satisfactory standard.

The Respondent contends that there was no less favourable treatment of the Complainant and in that context, her claim of discrimination has to fail. Not only that, but given the absence of evidence that the Complainant was discriminated against by the Respondent due to her disability, no breach of the EE Acts can be discerned here and as a result, the Complainant has not made out a prima facie case.

ALLEGATION OF HARASSMENT

In addition to the above, in relation to the Complainant’s harassment allegation, the Complainant states:

“The Courts Service was aware of how I was being treated the harassment could be reasonable anticipated, they did not take reasonably practicable steps to prevent me from being harassed…they knew since November 2020 I was being treated differently they took no reasonably practicable steps to reverse its effects they did not even investigate my complaint. There is a Dignity at Work Policy but I don’t believe it was implemented properly no investigation was conducted let alone properly or fairly”.

The Complainant first raised harassment allegations at her six month probation review meeting with her Manager on 10 March 2021. At this meeting, the Manager recommended that her probation period would be terminated. It was only after the Complainant was informed of this, that she then listed a number of harassment allegations against her colleagues and in particular, her Line Manager for the first time.

As set out in the Complainant’s complaint form, the Complainant asserts that on 11 March 2021 she phoned HR and asked how she could make a complaint about her Line Manager and that she was told she could do it as part of her appeal and that she was then sent information about Grievance and Dignity at Work. The Respondent confirms it did not advise the Complainant that she could address such complaints as part of her probation process. The Complainant was furnished with copies of the dignity at work policy and Circular 11/2011 Revised Procedure for Dealing with Grievance Problems, for the sole purpose of dealing with any complaints she wished to raise at this stage. These policies were furnished to the Complainant by HR on 11 March 2021 (exhibited). Notwithstanding the fact that the Complainant was provided with the appropriate policy documents to allow her to initiate her complaint, the only written complaint received from the Complainant regarding these allegations was her written appeal of the recommendation to terminate her probation, dated 30 March 2021 (exhibited). In this letter, the Complainant states:

“I wish to appeal the recommendation of my line manager to terminate my probationary contract. I am now outlining the grounds and related evidence that I wish to have considered in the appeals process, I am also requesting an oral hearing to further explain the grounds of my appeal.”

The Complainant then listed as part of her appeal, the various harassment allegations against the Respondent.

In response to these allegations, the Appeals Officer stated:

“I am not going to comment on Ms. Mangan’s claims or contentions regarding disagreements between her and [the Manager]. That is not part of my role as reviewer. This review is an assessment of whether or not the process was conducted fairly and comprehensively. Specifically, the Guidelines provide ‘If the probationer remains in the employment of his or her employer for the duration of his probationary period, three formal reviews should be conducted during that period.”

Further to this, and as set out in the Guidelines, it is the role of the Appeals Officer to review the probationary process and to assess whether or not the process was conducted fairly and comprehensively.

At no stage during the course of the Complainant’s employment did she submit written details of her allegations in respect of harassment outside of the context of her probation review process and more particularly, on receipt of the appropriate Dignity at Work policy on 11 March 2021. Accordingly, the Respondent did not have any opportunity to investigate these allegations outside of the probation process.

VICTIMISATION

Victimisation as set out in section 74 of the EE Acts is generally agreed to mean an employee suffering some form of what could be described as a retaliatory action from an employer as a result of the employee making equality/discrimination complaints.

In Moriarty v. Dúchas DEC-E2003-013 the Equality Tribunal emphasised that the act which results in victimisation must be connected to a reliance on rights set out in section 74(2).

“It is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of.”

It follows that the Complainant has not established a prima facie case of a contravention of the EE Acts as the Complainant had not raised a complaint of discrimination until the meeting dated 10 March 2021, after she was informed that her probationary period would be terminated. As the Complainant had not lodged an equality complaint prior to this, the Respondent could not have retaliated against the Complainant on the grounds as set out above. Accordingly, the Complainant has not demonstrated how she has relied on any of the elements of section 74(2) of the EE Acts.

CONCLUSION

It is respectfully submitted that the Respondent has no case to answer. The burden of proof rests with the Complainant to show that she was discriminated against on the ground of disability within the meaning of the EE Acts as alleged and it is the Respondent’s position that absolutely no evidence has been adduced to support such a claim. As the Complainant has failed to establish a prima facie case of discrimination, harassment or victimisation the Respondent respectfully submits that the WRC reject this complaint and the claim must fail.

In her closing remarks at the hearing Ms Ní Longáin noted that many extraneous matters were brought up by the Complainant and the Adjudication Officer is asked to consider only the complaints before her.

It was submitted that the Complainant attributed particular interpretation to the words used. The Respondent denies that it knew that she was autistic or, indeed, that she was to be assessed.

The Respondent engaged with Fórsa and steps were taken to assist the Complainant in her probation not to resolve any of her complaints as none were lodged. There are nationally agreed guidelines regarding probation and the Respondent followed the process. The Complainant seems to conflate issues so she can be seen as discriminated against.

Regarding the Complainant’s asthma, dermographic urticaria and hemochromatosis, the Respondent was aware of the conditions but they are in no way connected to the termination.

Regarding the claim under the Payment of Wages Act, the Respondent accepted that the increment was due, and it was paid to the Complainant. There is no question of PILON and the Complainant was paid her notice.

Summary of direct evidence and cross-examination of the Manager, HEO

The Manager described her role within the Respondent organisation.

The Manager said that the Complainant started her employment during a lockdown on a day on/day off basis as per a local arrangement. On the first day, the Complainant was not on the correct team, so she was sent home after 1.5 hour. She came back on Tuesday and worked every second day thereafter. The Manager said that in September the day on/day off arrangement finished and all staff came back to the office.

The Manager said that initially she did not manage the Complainant, but she met her on 24 August 2021. The Complainant’s manager was a named EO. That changed after the incident with a customer and the meeting with the Union. The Complainant’s line manager did not feel comfortable, so the HEO took over.

Regarding the incident of 28 October 2020, the Manager said that it was a regular day. She was at her desk. She said that she could hear people in the open plan office. She said that she could hear the Complainant, her voice became louder, she roared. The Manager said that she did not go to intervene, it is not the way she deals with issues. She asked the Complainant to come to her office afterwards. The Manager said  that the Complainant told her that the lady was not grasping, what she was supposed to do. The Manager said that she told the Complainant that this is not the way they worked. The Complainant acknowledged it happened.

The Manager said that on 13 October 2020 she did the Role Profile with the Complainant. She said that she always did the Role Profile even if she was not the line manager. She said that they went to one of the bigger rooms and she gave the Complainant some pointers. The Complainant was to complete the Role Profile within 2 weeks or so. The Manager said that she told the Complainant about her customer service and she replied that “I have a tone, she has a tone, we all have…”

The Manager said that she suggested a customer service course and the Complainant said that she had done it.

The Manager said that she still has to meet someone who had grasped this work so quickly, the Complainant was excellent, but she told the Complainant that they needed the best customer service, be kind and empathetic. 

The Manager said that on 2 November 2020 she spoke with the Complainant again and brought HR to the meeting. The Complainant’s three months review was brought forward to sometime in November and the Manager recommended termination of employment. The Manager said that she was told by HR that she could bring the three months’ probation forward and that way the Complainant would go back on the PAS panel.

The Manager said that she was unaware that the Complainant had a disability.

Regarding the allegation that she was punishing the Complainant for bringing concerns, the Manager said that none were brought to her attention, no complaints either.

The Manager said that the Complainant was wonderful when she first started but she had poor customer service. The Manager said that she does not have personal likes or dislikes. She said that she thought it was going well, except for the Complainant continually failing to turn up to give regular service and her poor customer service, which led to the termination. The Manager said that she still stands over her recommendation. The Complainant was not good at customer service and her attendance was an issue.

The Manager said that she never saw anyone treat the Complainant differently or badly, she certainly did not.

Regarding the meetings being held in the canteen, the Manager said that she thought it was a good place, it was more casual. They had a cup of tea before the counter opened. The Complainant never said that she did not like the venue.

In cross examination, the Manager was referred to the email of 18 November 2020 and asked how that was giving the Complainant a chance. The Manager said  that she recommended termination. She said that there was a meeting regarding the Complainant’s probation, she had no input.

The Complainant put to the Manager that “manic”  is a medical definition. The Manager said that she is not a medical person.

The Manager confirmed that the three months review and end of the year PMDS were conducted in a court room. She said that moving the meetings to the canteen was more informal, with a cup of tea.

The Manager confirmed that there were no complaints by customers about the Complainant.

The Manager said that she did not recommend the Complainant’s transfer. She said that she does not work in HR, she does not know if people transfer. 

The Manager said that she always does the Role Profile with new recruits. She said that, if there was a body of work that a person could do away from customer counter, she would give the Complainant a room to do it. She said that the Complainant was meticulous.

It was put to the Manager that she read documents on autism. She confirmed that she did, but she is not a medic, she would not recognise autism.

Summary of direct evidence and cross examination of the Personnel Officer

The Personnel Officer explained that all new entrants are appointed on a one-year probation with three, six, and nine month review. At any time during the process a recommendation can be made to terminate employment. In such case, a manager writes to the Personnel Officer. The Personnel Officer writes to the officer concerned and encloses the appeal process guidelines. The Personnel Officer appoints an Appeals Officer. As the Respondent is a large organisation, generally someone independent is appointed.

The Personnel Officer said that she received a phone call from Fórsa in early November. The representative said to her that he had contact from the Complainant and put a request that the situation was slowed down, it was agreed. The Personnel Officer said that no disability discrimination was mentioned. The Personnel Officer agreed that the Respondent would give the Complainant another three months as a result of direct intervention by Fórsa. The representative also queried if the Respondent would consider a fresh start position in Nenagh. The Personnel Officer said that Ennis was not considered as there was no vacancy.  Nenagh was a smaller office, less volume as it is a District Court only and both Limerick and Ennis are a Circuit and District Court. The Personnel Officer believed that, given the size, the Nenagh location would be more suitable for a fresh start. The Personnel Officer noted that this offer was not an entitlement. Probation is a year in the same job so an exception was made, but it was not related to a disability.

The Personnel Officer wrote to the Complainant on 22 March 2021 explaining that a recommendation had been received from her Manager and she set out the appeals process. The Complainant appealed. An Appeals Officer at the level of a Principal Officer, legally qualified was appointed. The Appeals Officer would have no knowledge of anyone in Limerick. There is a provision to do the appeals on the papers and the Appeals Officer decided that she would do so. Her conclusion was provided to the Complainant for comments, which she did and copied the CEO. The decision of the Appropriate Authority (the CEO) was that she was satisfied to accept the recommendation. It came back to the Personnel Officer who wrote to the Complainant to inform her of the decision of the Appropriate Authority that her contract would be terminated.

The Personnel Officer said that the Complainant was entitled to statutory notice of one week. However, the Respondent always pays four weeks’ notice in these circumstances to give some time and comfort. The Complainant was employed until 11 June 2021 but was not required to attend the office. She remained on the payroll, there was no payment in lieu of notice.

Regarding the increment, the Personnel Officer accepted that the Complainant needed to be paid correctly. She said that the Respondent contacted the NSSO who do the processing. She said that in week 29 of 2021 a refund of superannuation and annual leave was processed in the amount of €974 net. In week 32 of 2022 salary arrears were processed including annual leave accruing from the increment (€768.96 gross).

Regarding the claim of discrimination, victimisation and harassment, the Personnel Officer said that she refutes that entirely. She said that the Manager detailed the reasons for dismissal, the Respondent went through the process, there was nothing discriminatory. The Personnel Officer said that she did not know that the Complainant was autistic.

In relation to the alleged punishment for making complaint, the Personnel Officer said that there is no evidence of any complaint. She said that the appeals process is just that, an appeal. If there were any complaints, there is a Dignity at Work Policy and a Grievance Policy, both made available to the Complainant. She had an opportunity to make a complaint.

The Personnel Officer said that the Complainant was not treated less favourably than anyone else who was dismissed.

In cross examination, the Personnel Officer said that one has to be in service and the PMDS must be “satisfactory” in order to get an increment. She said that when the Complainant started, she was treated as if she had no service.

The Complainant put it to the Personnel Officer that the Manager insulted her and yet she was still allowed to be her Manager.

The Personnel Officer said that she worked with the Complainant’s union representative in partnership to remedy the situation. There was a request for additional time, which was granted. There was then a request of transfer, which also was granted.

The Personnel Officer explained that the Manager was the Complainant’s day-to-day manager, her own role was that of the custodian of the process.

It was put to the Personnel Officer that the industrial relations expert suggested that the Manager could be influenced. The Personnel Officer explained that the IR expert’s review was not a formal review of the case. The reviewer was employed on a graduate scheme and as a training exercise she was asked to review the case. The Complainant had a formal appeal route available to her.

The Personnel Officer said that her role is to manage the probation process. To maintain independence, she does not get involved in the early days of the process. There is no reason for the Personnel Officer to intervene in local management unless there is a complaint, there was none raised via the Dignity at Work or the Grievance Policy.

The Personnel Officer said that, if in a manager’s view an employee’s performance will never improve, they can recommend termination of employment.

The Personnel Officer took exception to the Complainant’s assertion that the Respondent was pretending to follow the process. The Respondent engaged with the Union, the rep made suggestions and the Respondent agreed to facilitate them. The only intention was to support the Complainant in her probation.

The Complainant questioned whether there was a policy on transfers. The Personnel Officer replied that, given that the Complainant’s position was in jeopardy and termination is not a decision the Respondent takes lightly, the Respondent agreed to a suggestion from the Union to facilitate a transfer. The Personnel Officer said that it was an exception. The Complainant further queried why was Nenagh better. The Personnel Officer explained that there was a vacancy there, she disputed the Complainant’s assertion that there were vacancies in Ennis. While she accepted that Nenagh was further than Limerick, she spoke with the Union that once the probation was completed, the Complainant could move.

Regarding the Manager’s communication with HR in relation to the Complainant’s probation, the Personnel Officer said that the role of HR was to support the Manager and it was in that context that they communicated.

The Complainant queries why the Manager continued to be her line manager and the Personnel Officer answered that no formal complaints were brought by the Complainant.

It was put to the Personnel Officer that she took a word of a person who bullied the Complainant regarding the decision to dismiss. The Personnel Officer clarified that the process was investigated by the Internal Appeals Officer who made a decision which was then put to the CEO. The Personnel Officer was not a party to the decision to terminate the Complainant’s employment.

The Complainant said that she informally told the AP that she would not discriminate against a customer. The Personnel Officer replied that the Complainant did not make a complaint, her Union never mention that a complaint has been made under the Dignity at Work Policy. The Complainant suggested that the Union rep has a longer relationship with the Respondent than with her.

In reaching my decision, I have considered all the submissions and evidence both written and oral presented to me.

The Complainant referred her claims under the Employment Equality Acts 1998, as amended to the Director General of the WRC on 31 August  2021.

The Complainant alleged that:

1.      The Respondent discriminated against her by reason of her disability;

2.      The Respondent dismissed her for discriminatory reasons;

3.      The Respondent dismissed her because she opposed discrimination;

4.      That she was victimised, and

5.      That she was harassed.

The most recent date of discrimination was stated as 11 June 2021.

For the avoidance of doubt, while both parties in their respective submissions refer to asthma, dermographic urticaria and hemochromatosis, the Complainant confirmed at the adjudication hearing that her claim is on the basis that she is an autistic person.

The Respondent rejects the claims.

Burden of proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. 

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v Valpeters EDA0917 where it held that Section 85A: 

"…. 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.”

In Hallinan v Moy Valley Resources DEC-S2008-25, a complaint taken under the Equal Status Act, 2000, the Equality Officer held that, in order to establish a prima facie case of discrimination, the following must be established:

1.      The complainant must establish that he or she is covered by the protected ground;

2.      Establish that the specific treatment has allegedly taken place;

3.      The treatment was less favourable than was or would be afforded to a person not covered by the relevant ground (a comparator) in similar circumstances.

There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient to simply be a member of a protected group to render acts discriminatory, if for example no comparator exists or can be inferred, or the acts are transparently attributable to a non-discriminatory cause.

In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

““The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such an inference can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Disability – Direct Discrimination

Section 6(1) of the Act provides that discrimination shall be taken to occur 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 grounds specified in subsection (2) ...”.

Section 6(2)(g) of the Act defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability".

The definition of disability in Section 2(1) of the Act is as follows:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

The Complainant submitted that she has autism. There was no dispute that that autism is a disability for the purposes of the Act. The Respondent contended, however, that it was not on notice of the Complainant’s disability.

It was not in dispute that the Complainant did not inform the Respondent of her disability. The Complainant asserted that she had always known that she is an autistic person. However, she confirmed that at the time of her employment with the Respondent and as of the date of the termination of employment she was not medically diagnosed with autism. Rather, she relied on self-diagnosis. The Complainant did not inform the Respondent of her self-diagnosis. As of the date of the adjudication hearing, no evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the Complainant's GP, was adduced to show that the Complainant has a disability within the meaning of the Acts. The Complainant took exception to the Adjudication Officer’s query with regard to such evidence.  The Complainant confirmed that she has  “recently” been diagnosed and post-hearing she furnished a later signed by Dr Merriman dated 9 July 2021 stating, “This is to confirm that you meet the DSM-5 criteria for Autism”.

The Complainant appeared to suggest that, as she exhibited characteristics of an autistic person, the Respondent should have known that she had autism without medical evidence to support her self-diagnosis. Moreover, she asserted that her sick absence placed the Respondent on notice of her disability.

Valuable guidance as to what is required in the context of an employee not disclosing his or her disability is provided by Advocate General Sharpston in her opinion in Case C-270/16, Ruiz Conejero v Ferroser Servicios Auxiliares. In her opinion, the Advocate General found that the obligation to provide reasonable accommodation was only triggered “where the employee has told his employer of his disability and its extent, together with all relevant surrounding circumstances”. 

The Labour Court has also confirmed that, before an employer can be answerable for disability discrimination, it must have actual or constructive knowledge that the employee was disabled.

In Swan O’Sullivan v Counihan (EDA10/2018), an employee claimed to have been discriminated against on the grounds of disability.  The employee had not informed his employer of his disability.  The Labour Court rejected his claim after establishing that the employee had failed to produce medical certificates when requested to do so by his employer.  The Court held “… before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person”.

Having carefully considered the written and oral submissions and evidence in relation to this aspect of the complaint, I do not accept that the Respondent was on notice of a disability. I, therefore, find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of disability contrary to Section 8 of the Acts.

Claim of dismissal for discriminatory reason

As per my findings above, the Respondent was not on notice of the Complainant’s disability. I, therefore, find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of disability in the context of discriminatory dismissal.

Claim of Victimisation

The next element of the Complainant’s complaint which I must consider relates to the claim that she was subjected to victimisation contrary to the Acts. Section 74(2) of the Acts defines victimisation as follows:

“victimisation” occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-

a)     a complaint of discrimination made by the employee to the employer,

b)     any proceedings by a complainant,

c)      an employee having represented or otherwise supported a complainant,

d)     the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

e)     an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

f)       an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

g)      an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

It is clear from the above that there must be a detrimental effect on the Complainant which is caused by her having undertaken a protected act of a type referred to above.

In the case of Tom Barrett v Department of Defence EDA1017the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out.  It stated that

(i)               the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”,

(ii)              the Complainant must be subjected to adverse treatment by his/her employer and

(iii)            the adverse treatment must be in reaction to the protected act having been taken by the Complainant.

I must decide, in the first instance, whether the Complainant took action that could be regarded as a “protected act”.

In the instant case, the Complainant alleged that she was victimised and a recommendation was made to terminate her employment because she told the Manager and the Assistant Principal that she was bullied, and because she told HR that she was under stress. She was also victimised because she refused to discriminate against people who did not wear masks.

I note the Complainant’s reliance on, inter alia, an email exchange regarding the matter of serving customers with no masks and the alleged difficulties the Complainant had with another CO and a Porter (February 2021), and on the notes of her meetings with the Manager. None of these, in my view, can be elevated so as to constitute a protected act of a type referred to above.

I have carefully reviewed the parties’ submissions and their respective evidence. I note that on 4 November 2020, the Complainant was informed by email from HR that her Manager recommended termination of her probationary contract. A meeting was held on 16 November with the Complainant, her Union representative and HR. A number of arrangements were agreed upon. On 27 November 2020, the Complainant was informed that her three month probation assessment was unsatisfactory. On 10 March 2021, the Complainant was informed that her six month probation period assessment was unsatisfactory. The Complainant met with the Manager on 10 March 2021 for the six month probation review when the Manager informed her that she recommended termination of the Complainant’s contract. It would appear that at this meeting, for the first time, the Complainant indicated that she would be making a complaint. The Complainant, on her own evidence, contacted HR inquiring about the complaint making process and copies of the Grievance Procedures and the Dignity at Work Policy were sent to her by email on 11 March 2021. She subsequently raised a number of allegations regarding the allegedly poor probation process, inadequate training, and the Manager’s “personal dislike” in her appeal of the recommendation dated 30 March 2021 and, in her email, dated 10 May 2021 to the Appropriate Authority (CEO).

In considering this matter, I am satisfied that the Complainant has not established that she invoked or undertook any of the protected acts within the meaning of Section 74(2) of the Acts prior to the alleged detriment suffered. In the circumstances, I am not satisfied that the Complainant has adduced any evidence from which it could be reasonably concluded that she has been subjected to victimisation within the meaning of the Acts in relation to the alleged adverse treatment claimed. 

Accordingly, I find that the Complainant has failed to establish facts from which it could be inferred that she was subjected to victimisation within the meaning of Section 74(2) of the Acts in the within case.  

Claim of Harassment

The next element of the Complainant’s complaint that I must address relates to the claim that he was subjected to harassment by the Respondent within the meaning of Section 14A of the Acts.

“Harassment” is defined by section 14A(7) of the Acts which states: 

“references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds …. 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.”

Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material".

For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground.

The Complainant in the within case alleges that she was harassed because of her disability, namely autism. The Complainant described plethora of incidents that she asserted were incidents of victimisation and/or harassment. As I have found above, at the relevant time the Complainant was not diagnosed with autism and the Respondent was not put on notice of the disability.

Having regard to the evidence adduced, I am satisfied that the Complainant has not presented any evidence from which I could reasonably conclude that she was subjected to harassment on the ground of her disability contrary to Section 14A of the Acts. 

Accordingly, I find that the Complainant has failed to establish a prima facie case of harassment within the meaning of Section 14A of the Acts.

The Complainant, in her WRC complaint form submits as follows.

The Complainant submits that she is not sure if she was paid correctly. The Complainant submits that she sent proof of her previous service with Revenue to the Respondent’s HR on the 18 June 2020. She thought that she had sent it previously but it was sent to the wrong address, and the Complainant did not receive a notification saying “error address not found”, so she was unaware of this until later. This was related to the Complainant getting her incremental credit in December 2020. The Complainant submits that she would have been due this increase because of her previous service. The HEO in HR said she would look into this on 18 June 2021 but as of the date of the complaint, the Complainant still has not heard back from her, so she did not know if she was on the correct rate of pay from December 2020 until termination of her employment in June 2021.

The Complainant submits that she contacted the Department of Public Expenditure NDP Delivery and Reform to query this, and she was informed that, if her Manager had not signed off on her PMDS, that the incremental credit would not be added to her rate of pay. The Complainant submits that her Manager had not signed off her PMDS which she had completed well in advance of the termination of her employment. The Complainant had informed HR that her PMDS was not completed by her Manager in her appeal of the decision to terminate her employment.

The Complainant submits that on 12 May 2021 colleagues in her office were sent the new PMDS to complete but she was not as the Manager had not completed her End of Year Review which she had submitted on 10 December 2021. The Complainant’s employment was terminated 2 days later on 14 May 2021.

In correspondence dated 5 October 2021 to the WRC the Complainant submitted that had her incremental credit been added, she would have been in receipt of €502.02 gross per week from the week of Monday 14 December 2020 until the end of her employment. This equates to €801.32 gross up until 11 June 2021. The Complainant’s annual leave would have been calculated on the incorrect rate of pay. When the Complainant’s employment was terminated she received €895.28 gross. The Complainant did not know how this figure was calculated as her gross pay was €471.20 and her annual leave should have been for ten days as per her termination letter which would seem to indicate a gross of €942.40.

In correspondence of 6 December 2021, in response to the Respondent’s submission, the Complainant stated that she did not agree that the within complaint and CA-00046342-002 could be resolved without the requirement of mediation or a hearing. The Complainant did not consent to this. The Complainant submitted that it was because of the Respondent’s behaviour in ignoring her that the WRC was involved in this. If the Respondent had been willing to engage with her prior to terminating her employment, the parties would not be in this situation. The Complainant submitted that it would not be resolved satisfactorily for her by skipping due process.

At the adjudication hearing on 8 March 2023, the Complainant confirmed that she received the outstanding payment. However, she said that she did not spend the money and she requested that a decision be issued regarding this complaint.

The Respondent submits as follows.

The Complainant asserts that she was entitled to receive an incremental credit in December 2020 on foot of previous service the Complainant had with Revenue, but that she did not receive this. The Complainant’s revised increment date was 19 December 2020. The Complainant states that her PMDS was not completed, which would have addressed the awarding of this incremental credit. The PMDS referred to by the Complainant was for the year January 2020 – December 2020. The rating of the Complainant’s PMDS record for this period would not have influenced the awarding of the increment in December 2020, but would have influenced any increment to be awarded in the following year.

On receipt of the Complainant’s complaint form, the Respondent reviewed the Complainant’s record on HRMS, and confirmed that she was entitled to an incremental credit as a result of her previous employment in the Civil Service. The Respondent calculated the difference in payment was €775.00. On realising the error, in December 2021 the Respondent contacted the National Shared Services Office for the Civil Service (the “NSSO”) requesting that the payment be made to the Complainant. On further inquiries in June 2022, it came to the Respondent’s attention that due to an error by NSSO, the payment had not been processed. The Respondent again requested that the payment be processed, and it was confirmed by the NSSO that this would be done as soon as possible. As the Respondent agrees that the Complainant should be paid this incremental credit and has put in place the process for doing so, the Respondent requests that this complaint be dismissed.

At the second day of the adjudication hearing on 8 March 2023, the Respondent confirmed that the payment has since been made to the Complainant.

On 21 September 2021, the Complainant referred her claim to the Director General of the WRC alleging that the Respondent has not paid her or paid her less than the amount due to her.

The Complainant’s claim relates to the increment that was due to her. There was no dispute that the Respondent has retrospectively applied the increment sought by the Complainant and in the time since the lodging of the complaint the outstanding sum has, in fact, been paid. This, therefore, renders moot the claim of underpayment in respect of wages as referred to the WRC.

The Complainant, in her WRC complaint form submits that she did not receive the appropriate payment in lieu of notice of termination of her employment.

The Complainant submits that she received her termination letter by email on 14 May 2021. The letter stated that she was given 4 weeks’ notice and her last date of employment was 11 June 2021. The Complainant had previously booked annual leave for the 17 and 18 May 2021. While on leave on 18 May 2021, the Complainant was phoned by a HEO from HR and was told that she was not expected in the office anymore and that if she wanted any personal belongings that she was to contact the AP. The Complainant requested that it was sent to her by email. The Complainant contends that it was not an agreement, she was being told not to attend work. The Complainant submits that she was told that she would be paid up until 11 June 2021. The Complainant did receive this money, however, she was taxed on it and she was not sure if she was due to be taxed on it as there is nothing in her contract about payment in lieu of notice, it just refers to the Organisation of Working Time Act 1997 and this Act says it should be clarified in one’s contract. The Complainant submits that the Citizens Information advice states that if it is not in one’s contract, that it is deemed as compensation and generally not taxable and that one is deemed unemployed and can avail of social welfare for this time period. The Complainant did not apply for social welfare until after 11 June 2021 as she was not aware of this.

The Complainant, in her submission questioned why she was apparently given 4 weeks’ notice if the Respondent submitted that, as per the Minimum Notice and Terms of Employment Acts 1973 to 2005 that she was entitled to 1 weeks’ notice based on the length of service.

The Complainant presumes that the law quoted by the Respondent when stating 'one week' means one week, which is 7 days or possibly 5 working days. The Complainant is sure there is precedent to which way the law interprets ‘one week’.  But regardless of which way it is interpreted,  the Complainant submits that informing her on Tuesday to not come to work anymore does not constitute one week notice.

The fact that the Complainant was also on annual leave on the Monday and Tuesday could be argued that these days do not count as working days. The Complainant submits that she in effect did not  receive notice.

The Complainant submits that she received a phone call on 18 May 2021, and she was told 'If you would like to collect anything from the office, please make contact with [the AP] as [the Manager] is currently on leave.' The Complainant submits that she does not know how this could be interpreted as giving her notice. If she was still in employment with the Respondent until 11 June 2021, why would she need to make contact with an AP to collect any of her belongings? The Complaint submits that she was no longer an employee as she was not allowed in the building.

The Complainant submits that her contract contains nothing about payment in lieu of notice which she contends this behaviour amounted to. A definition the Complainant has come across of payment in lieu of notice states 'if an employer does not require the employee to work out any part of their notice, the employer is obliged to pay the employee for that period', which seems to have been what happened given she didn't work her notice.

The Complainant submits that a payment in lieu of notice is considered compensation for loss of employment (which would also explain the "4 weeks’ notice" and not the legislated one week) and not taxable as its compensation. The Complainant submits that she was taxed and also delayed accessing Social Welfare Services because she was unaware of this.

The Complainant submits that she had attempted to resolve the issue without submitting her complaint to the WRC. The Complainant submits that a copy of her payslip shows that she was taxed on an emergency basis on her annual leave pay as the Respondent had terminated her employment before giving her the leave and the gross amount she received does not correspond with 10 days.

The Respondent submits  as follows.

The Complainant asserts that she was paid in lieu of 4 weeks’ notice. In her complaint form, the Complainant states that she is not sure if this payment should have been taxed as there was “nothing in her contract about pay in lieu of notice.”

The Complainant was a paid employee of the Respondent up to the termination date of 11 June 2021, and was not paid in lieu of notice. It is customary practice for the Respondent to offer employees whose employment has been terminated the option to forego attending work during their notice period. This is a gesture of goodwill to maintain the officer’s dignity and allow them to opportunity to pursue new opportunities. As such, the Complainant continued to be a paid employee but was not required to attend work, and the appropriate statutory deductions were applied to her final salary payment.

The Complainant referred her claim to the Director General of the WRC on 21 September 2021 alleging that she did not receive the appropriate payment in lieu of notice on termination of employment.

There was no dispute that the Complainant was informed in writing on 14 May 2021 that her employment will be terminated. The letter confirmed that she was given four weeks’ notice and her last day of employment would be 11 June 2021. The Complainant confirmed that she received the payment for the period up until 11 June 2021. As the Complainant was in employment during the period of notice, the matter of payment in lieu of notice does not arise.

The Complainant has failed to establish a prima facie case of direct discrimination on the grounds of disability contrary to Section 8 of the Acts.

The Complainant has failed to establish a prima facie case of harassment by the Respondent contrary to Section 14A of those Acts.

The Complainant was not subjected to victimisation contrary to Section 74(2) of the Acts.

Accordingly, I declare this complaint to be not well founded.

I declare this complaint to be not well founded.

I declare this complaint to be not well founded

Discrimination – harassment – victimisation – PILON - increment