Complainant

Respondent

Parties

Liam McMullan

Inspire Wellbeing

Representatives

Self-represented 

Tiernan Lowey BL instructed by Ryan McAllister ARAG Legal Protection Ltd

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-00043104-001

17/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 67 of the Property Services (Regulation) Act

CA-00043104-002

17/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00043104-003

17/03/2021

The complainant asserts that he was discriminated against on the disability ground and that he was victimised per the Employment Equality Act. The complainant asserts that he was penalised for making a protected disclosure. The respondent denies the claims.

On affirmation, the complainant outlined that he was initially employed via an agency and then directly employed. An incident occurred and he went on sick leave because of stress. He returned to work, and it was unfair that the incident led to his dismissal. The complainant said that this had a profound effect on him and while he was now back working, it took time for him to get back on his feet.

The complainant said that the incident was not looked at fairly. He wanted to care for people and did so under extreme stress. He had made a protected disclosure about a colleague’s behaviour. The disclosure ought to have been confidential, but the colleague learned of it. This caused tension as the colleague kept entering the house the complainant was working in.

The complainant outlined that he was penalised for making the disclosure. This included the colleague trying to physically trip him up. He spoke with the HR Manager, who was genuine.

The complainant moved to House 1 and was concerned about the lack of team leadership. One resident had obsessive behaviour and wanted to leave the site. Respondent staff addressed this by dragging him into a go kart. The complainant wanted to address this challenging behaviour. The incident occurred four days after he started as a direct employee.

The complainant said that a named colleague had pulled the resident off the couch to put him into the go kart. The complainant raised this, and the Team Leader said he would deal with it.

The complainant said that on 13th August, he was working with the resident over the regular period of four hours. The resident was aware that a gate was open and sought to leave through it. This was identified as a trigger for the resident. The complainant had attended work at 7am, having completed two 12-hour shifts. The resident was immediately trying to leave and was very distressed. The complainant spoke to the resident, emphasising the importance of their relationship. A named colleague brought the bus up to the gate and the complainant said that he would get padlocks for the gates. This was approved by a manager and was to reassure the resident.

The complainant locked one of the gates and the resident was reassured on approaching the gate that it was locked.  The resident was not distressed. The complainant removed the lock once the resident was gone, to allow vehicles enter the site.

On the complainant’s return to the house, he was criticised for leaving the co-worker alone. The resident had removed his helmet and was banging his head off a wall. The complainant said that this resident needed love and not control. He had not intended for the co-worker to be left in this situation. He was stressed at being given out to but continued to regulate the resident.

The complainant finished with the resident at noon. By 6pm, the resident was placed again in the go kart, and this was unbearable for the complainant. A staff member told the complainant that he was ‘going down’ for what had happened earlier. The complainant replied that he should ‘go f*** himself as he was going down for abuse’. The manager advised him to then leave, and the complainant decided that he should, given that the resident present was independent.

The complainant accepted that he banged the door on leaving. He said that he was traumatised at seeing a resident being treated in this way. While he returned to work on the following Monday, he was signed off with acute stress. The complainant was on sick leave until October. At the meeting, the team leader read out witness statements regarding the incident. One staff member left out what he said to the complainant and this staff member had been aggressive. The complainant outlined that he had apologised to the resident who witnessed the incident. He met the team leader again and he was dismissed. This was on grounds that the complainant had breached his probation. The complainant shook the team leader’s hand and asked him to look after the residents as this was the only reason the complainant did the work.

The complainant outlined that in or around Christmas 2020 he met a named manager to raise his concerns and what the complainant considered to be serious human rights violations. They met twice and the manager appeared to close off contact.

In cross-examination, the complainant said that he had worked in the autism field before this role. While he was informed of the whistleblowing policy, he was never trained in it. Of the residents in House 1, one was quite independent, and the others had complicated needs. He did not think that the care plans for these service users were sufficient. He said that it was important for each employee to be aware of the care plan for each service user.

In respect of his job description, the complainant said that while he had signed the safeguarding policy, he had not received training in this. He had sat down and signed wherever was required and it was not a detailed induction. He signed his name in respect of service user care training and whistleblowing training, but there was no training. He could not recall whether he had obtained the same training again in August 2020, on becoming a direct employee. It was put to the complainant that a manager would give evidence of providing this intensive training, especially as the complainant had raised issues for example the use of the go kart. The complainant replied that this manager was quite good and was empathetic. He did not accept the resident being forced to use the go kart. He accepted that he may have had some training. He said that people in the respondent were not doing things the right way.

The complainant said that the safeguarding concern he raised in June 2019 should have been addressed as a protected disclosure and he was penalised for making this report. He had raised a concern about a colleague and his tone of voice with clients. It was put to the complainant that this was investigated, and it was held that there was insufficient evidence. The complainant said that this colleague tried to intimidate him for making the complaint and this caused the complainant stress. This occurred before the complainant was a direct employee of the respondent and the colleague had since left. The complainant outlined that the day of the incident would not have happened, had he been treated properly. It was put to the complainant that the events of June 2019 were unconnected with the later incident and the decision to dismiss him; the complainant did not accept this. It was put to the complainant that he was hired as a direct employee after this; he replied that he was easy to hire but they had ignored the abuse. It was put to the complainant that he had then raised operational issues and had not reported wrongdoing; the complainant did not accept this and said that he made a huge mistake in not going to HIQA. It was put to the complainant that he was not penalised, for example he was offered shifts and then employed directly.

The complainant could not remember previously seeing the risk management plan for the resident, opened at the hearing. It was put to the complainant that redirecting the resident included use of the go kart. He had seen the resident being made to go to the go kart rather than being ‘guided’. In respect of the 13th August, the resident was agitated and trying to get to the external gate. The complainant got the locks and he and the co-worker brought the resident to show him that the gate was locked, helping the resident to regulate. It was put to the complainant that he was not present for 45 minutes as the resident escalated; he replied that he was trying to get the gates locked and was under serious stress. He had gone to the gates and then to the office to run ideas by them. The complainant outlined that he spoke with Ms Markey during this time.

The complainant could not recall a later incident that day where the resident had grabbed the co-worker’s arm. He could recall telling a colleague that he would go down for abuse of the resident. The complainant outlined that he and the colleague were talking. He said to the colleague that he would go down for his abuse of the resident. The complainant became angry and shouted ‘f*** off’, leaving and slamming the door. It was put to the complainant that he left work before the end of his shift, and no one was there to provide care to the resident; he could not recall whether he was assigned to this resident at the time. It was put to the complainant that his medical notes did not refer to work-related stress; he replied that they could have. It was put to the complainant that he was certified fit to return to work on the 7th October; he replied that he returned and was provided with a roster. It was put to the complainant that this indicated that no outcome was pre-determined. The complainant confirmed that he did not appeal the dismissal.

Evidence of the manager

On affirmation, the manager, Ms Markey, outlined that on the 13th August, the complainant had spoken to her about getting locks. He was not in the office later that day. She spoke with the complainant and gave the HR Manager the three complaints about the incident. On the 17th August, she advised the complainant to go home when he said that he was unwell. She next heard from the complainant on the 1st October when he indicated that he wanted to return to work early. In cross-examination, Ms Markey said that no one knew where the complainant was for a period of 40 minutes on the 13th August.

Evidence of the co-worker

On affirmation, the co-worker, Ms McNally, said that on the 13th August, she went to assist the complainant in dealing with the resident. They were close to the entrance of the site, and it was dangerous as staff were leaving and arriving to the respondent. A colleague brought the bus up and the resident entered. The complainant asked her to bring the resident to show him the locked gate. It was practice to have another staff member on duty when the resident became agitated. She and the resident examined the gate and were then returning to the house. The co-worker thought that the complainant was behind her, but he was not. The resident then began to bite his own hand and to bang his head hard off a wall. The co-worker said that she then knew that she was in trouble. She called for help and another colleague came out. The co-worker said that she was very upset by what had happened and raised this with the complainant.

The co-worker said that later that day the resident had grabbed her arm and she shouted for help. She asked a colleague to get the resident off her and he did so. The complainant said that the colleague had abused the resident. The complainant was shouting and upset. This took place in front of another client. The complainant told the colleague to ‘f*** off’. The co-worker then raised this officially.

Evidence of the team leader

On affirmation, the team leader, Mr Azzopardi, outlined that he completed a full induction with the complainant at the start of his direct employment, including the whistleblowing policy. The complainant raised concerns about activities, menu planning and the use of the go kart. While the complainant had raised these operational issues, there was no formal complaint. As the complainant’s line manager, he was involved in the probation review. This occurred on the 15th October and he and the HR Manager decided to end the complainant’s employment as the complainant should not have behaved and treated his colleagues in this way.

Evidence of the HR Manager

Having sworn the oath, the HR Manager, Ms Mallon outlined that at the time she was HR Business Partner. She received the disclosures forms and statement on the 14th August and spoke with the manager. The HR Manager instigated an investigation. They did not know of any disability or why the complainant was out. The complainant attended an occupational health assessment, and no adjustments were proposed. The probation review was carried out on the 15th October and she and the team leader decided that the complainant’s employment should end. The complainant had admitted to five incidents: shouting, swearing, slamming the door, speeding off and leaving early as well as not completing the notes. The HR Manager said that she had previously addressed the complainant’s safeguarding concern. This was denied by the colleague and there was no evidence to support the complainant’s concern.

In closing, the respondent outlined that it did not know of the complainant’s disability. Occupational health had not proposed an adjustment. The incident of the 13th August was already being investigated so there was no link with the medical certificate submitted on the 18th August. In respect of the protected disclosure, the respondent outlined that the only document was the one of June 2019. This was investigated and found not to be substantiated. It was not channelled as a protected disclosure. The complainant raised operational issues with the team manager, who had offered the complainant an open door to raise concerns. While the complainant had criticised the care plans, these were prepared by experts. It submitted that the respondent was entitled to review the complainant’s probation and to terminate his employment.

These are complaints pursuant to the Employment Equality Act, the Property Services (Regulation) Act and the Protected Disclosures Act.

First, it is clear that this matter does not relate to ‘improper conduct’ by a licensed property professional as the complainant is a social care worker and the respondent, a provider of social care services. The complaint pursuant to the Property Services (Regulation) Act is, therefore, not well-founded.

The first striking thing about this case is the complainant’s deep commitment to social care, and the care and welfare of the clients of the respondent. He demonstrated this commitment during his employment with the respondent, first as an agency worker and then as a direct employee. This is exemplified by the complainant’s emphasis on the welfare of clients in his interactions with the respondent following the ending of his employment, rather than his own interests (for example the email of the 16th February 2021).

The second aspect of note is the care needs of the respondent clients, including the person referred to in these decisions as ‘the resident’. The documentation sets out the commitment of the parties to the dignity of the clients and the realisation of their full potential. Many of the events set out in the evidence were stressful and I acknowledge that they were most stressful for the clients.

The third aspect of note is the credibility and cogency of the respondent’s evidence. Four witnesses set out their perspectives as to what happened on the 13th August and related events. Two witnesses addressed why they decided that the complainant had not passed probation and why his employment was terminated.

It is obvious from the evidence that this is intense work that caused the complainant great stress. In the correspondence, he refers to ‘reaching his limit’ and also to collapsing after the events of the 13th August. I note the resident’s positive behaviour support plan, in particular the threat to this resident of ‘self-injurious behaviour’. I note the emphasis on using a low arousal approach and the use of interventions to relax the resident, for example a timer or an iPad. I note that the complainant had great concerns regarding how the go kart was used as an intervention strategy.

Threshold requirements

The Employment Equality Act complaint relates to disability. The Protected Disclosures Act complaint relates to disclosures the complainant made regarding the service. I find that the complainant has met the threshold requirements arising from both statutes.

It is clear from the evidence of all parties that the complainant was acutely stressed during these events, and I find that this constitutes a ‘condition’ within the ambit of subsection (e) of the definition of ‘disability’ in the Employment Equality Act.

I find that the ‘operational issues’ and the safeguarding matter raised by the complainant constituted relevant information related to a relevant wrongdoing, in particular within the ambit of section 5(3)(b) and (d) of the Protected Disclosures Act. This is not to say that the allegations made by the complainant were correct, but that they constituted the giving of ‘relevant information’ within the above definition.

Burden of proof – Employment Equality

The acts of discrimination per the Employment Equality Act relate to the events building up to the 13th August, the events of the day itself and the subsequent decision that the complainant did not pass probation, leading to the ending of his employment. The legal test is set out in section 85A of the Employment Equality Act, and it is whether the complainant has established facts of such significance that raise an inference of discrimination. This is a test that is easier (and not onerous) for a claimant to meet than the civil burden of a balance of probabilities.

In line with the well-established Labour Court authorities of Mitchell v Southern Health Board [2001] ELR 201 and Valpeters v Melbury Developments [2010] ELR 64, what constitutes something of such significance to raise an inference of discrimination varies according to the relevant factual matrix in each case. If the relevant facts are within the exclusive knowledge or near-exclusive knowledge of the respondent, then the inference or presumption is quickly raised; it falls on the respondent to show that there was no breach of the principle of equal treatment. A complainant’s ‘mere assertions’ will not raise an inference of discrimination where there are relevant facts that the complainant can be expected to ascertain.  

Burden of proof – Protected Disclosures

At the time the complaint was lodged, the burden of proof was the ‘but for’ test: whether the protected disclosure was an operating cause in the act of detriment, as opposed to being the main cause or the whole cause. This burden of proof was significantly altered by the Whistleblowing Directive (Directive 2019/1937) and the transposing Protected Disclosures (Amendment) Act, so that it is presumed that the detriment was due to the protected disclosure. In line with the Directive, this reverse burden of proof applies to all aspects of detriment, including deeming that a person has not passed probation or that their employment should end.

Application of the law to the facts

The complainant and the respondent witnesses all gave impressive evidence of their commitment to the welfare of the respondent clients. They were dealing with difficult situations that were challenging to manage. The situation was evolving, for example the issue of the broken locks which was a source of stress for the resident. I find that the parties were endeavouring their best to deal with these challenges and the needs of the clients. While I appreciate that the events of the 13th August had a profound effect on the complainant, his actions to a colleague and in front of a client were a legitimate cause of great concern to the respondent.

I find that the respondent concluded that the complainant had not passed probation because of the five elements of what happened on the 13th August: shouting, swearing, slamming the door, speeding off and leaving early as well as not completing the notes. I find that it was the complainant’s actions and not a disability or a protected disclosure that led the respondent to deem that the complainant had not passed probation and that his employment should then end. The respondent, therefore, relied on ‘duly justified’ grounds and there was no penalisation per the Protected Disclosures Act. There was also no discrimination on grounds of disability, as while the complainant was clearly stressed, the respondent acted on foot of his conduct and actions (and not his stress or disability). The complainant has not established facts that raise an inference of discrimination.

For completeness, victimisation occurs where there is less favourable treatment arising from the making of an equality complaint, including to the Workplace Relations Commission. The complainant engaged extensively with the respondent after his employment came to an end, and there is no indication of any less favourable treatment.

CA-00043104-001

I decide that the complainant was not discriminated against on grounds of disability and nor was he victimised per the Employment Equality Act.

CA-00043104-002

I decide that the complaint pursuant to the Property Services (Regulation) Act is not well-founded.

CA-00043104-003

I decide that the complaint pursuant to the Protected Disclosures Act is not well-founded.

Protected Disclosures Act / Galway-Mayo Institute of Technology v Employment Appeals Tribunal