Complainant

Respondent

Anonymised Parties

Credit Controller

Utility Provider

Representatives

  Self and supported by John Dunne BL

Niamh Daly IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00051725-001

18/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00052524-001

01/09/2022

There are two complaints made:

·       Constructive Dismissal

·       Harassment/Disability

The Complainant commenced employment on or about 7th December 2020 in a credit control role. Initially the contract was for a 9-month period. The Complainant performed very well in this role and therefore was offered a permanent position with the Company.

This is a case where the Complainant believed that sensitive personal information about her attending a counsellor was shared with work colleagues leading to a marked deterioration in how her team treated her.

She perceived that the team began to exclude her from social exchanges and ignored her. This led to a growing sense of isolation and anxiety.

The Respondent stated that very alarming information about the wellbeing of the Employee had been brought to their attention confidentially by the Complainant and nothing was shared with a wider team. It involved very sensitive disclosures and arising from that it owed a duty of care to the Employee.

The Complainant believed that there was a fundamental breach of trust involving a third-party counsellor that led to personal information and sensitive matters being disclosed to her work colleagues. In turn the Complainant believed that led to her team colleagues treating her differently and ignoring her leading to a sense of isolation. In turn this led to an intolerable situation where she could no longer work with the Respondent.

The Employer stated that their actions show that they were concerned about the welfare of the Employee and that no private sensitive medical/counselling disclosures were made to anyone. No inappropriate and unsolicited contact was made with the Employer by any psychologist or counsellor.

The Employee left by reason of resignation on the 20th of May 2023.

This is a case where an employee wished to detail how she experienced her working environment with her immediate manager and with work colleagues.

The test in law for a constructive dismissal relates to a fundamental breach in a contract term and or the unreasonable behaviour of the employer. Where dismissal is an issue in dispute the onus falls to the Complainant to prove on the balance of probabilities that such breaches occurred and or the behaviour of the employer was so unreasonable that they had to leave and in effect were constructively dismissed.

A claim under Equality Law requires that a Complainant meets what is called a prima facie threshold which means that there is evidence before the tribunal where it could infer that discrimination had occurred.  If that threshold is met the Employer, then carries the burden to show that they did not and must rebut that inference or presumption of discrimination.

The Complainant clearly believes that her mental health disability has been used against her and that she was so to speak hounded out of the workplace.

Based on what the law requires to make out a case for Constructive Dismissal and a Prima Facie Case in the first instance to ground a discrimination complaint, I find that the Complainant has not made out a case that she was constructively dismissed and has not made out a prima facie case to raise a presumption of discrimination.

The evidence presented by the Complainant is about perception and that is important to the Complainant. However, the test in law is also about the Complainant detailing facts that on the balance of probabilities demonstrate that she was constructively dismissed, and that facts have been established to ground a prima facie case that give rise to an inference of discrimination.

The Manager and HR Business Partner have given evidence where they were following good practice regarding referral to Occupational Health and interviewing the Complainant following unauthorised absence as per the company absence management policy. They deny that the Complainant’s Psychologist/Counsellor contacted the Company and inappropriately shared information with them.

Any disclosure that they acted on was made by the Complainant herself and where they believed that an external event had created a risk for the Complainant. This in turn gave rise to a referral to Occupational Health.

 The Complainant believed that at a time of vulnerability concerning her mental health the Company invoked a policy driven approach concerning a referral to Occupational Health and absence management; however, they showed no compassion or empathy to her about her mental challenges.

The hearing provided an opportunity for both parties to give their respective accounts. What the employee wished from her employer they could not meet; however, they did seek to be fair and reasonable. The Complainant did not perceive the formality of the process as the right response and experienced isolation when she began to share with work colleagues what she was experiencing.

The Complainant while clearly experiencing significant mental health challenges did not invoke the grievance procedure.

The Complainant now has a new role and is happier in that position.

On the facts I must determine that the Employer has not constructively dismissed the Complainant and they have not discriminated against her on the ground of disability.

CA-00051725-001 Constructive Dismissal

Murdoch and Hunt’s Encyclopaedia of Irish Law (2016 edition) defines Constructive Dismissal as follows:

A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227.

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293.

The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

This statutory definition in turn has been elaborated upon to include two tests:

Redmond on Dismissal Law (Bloomsbury Professional 3rd Ed. 19.04):

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.

In law there is a contract test and a reasonableness test.

In a wrongful dismissal action in Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.

In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee when assessing if constructive dismissal had in fact occurred; and the following 4 principles are also relevant in this case:

1.       The test is objective

2.       The test requires that the conduct of both employer and employee be considered

3.       The conduct of the parties as a whole and the accumulative effect must be looked at

4.       The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.

Based on the facts as summarised the Complainant has not made out a case that her employer constructively dismissed her by breaching a fundamental term of her contract and/or demonstrating unreasonable behaviour such that she had no alternative but to leave. I determine that the Complainant was not unfairly dismissed, and the complaint is not well founded.

CA-00052524-001 Discrimination on the Ground of Disability:

Prima Facie Test

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude,[this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58)

At section 16(3) of the Employment Equality Act 1998 as amended (The Act) it states:

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training, unless the measures would impose a disproportionate burden on the employer.

At the hearing the Respondent stated that they were willing to accommodate the Complainant and they requested her to reconsider her decision to resign. The line manager was not a health professional and relied upon the Occupational Health area to advise her. There was no animus or campaign to exclude the Complainant based on her mental health disability. In fact, colleagues and the line manager did attempt to include her and to be sociable and did respond to her texts and messages; she was not ignored. The Company did apply the absence policy to her when she was on unauthorised leave. However, that was not conducted in an oppressive or harsh way, rather it was a fair policy clearly responding to events and always putting the welfare of the employee to the fore.

The Employer argued that no prima facie case to raise an inference of discrimination alleging harassment on the ground of disability had been made out and that the perception and view of the Complainant was not enough to ground a prima facie case.

I determine that the Complainant has not made out a prima facie case of discrimination on the ground of disability and that the Employer did not discriminate against her on the ground of disability and did not engage in harassment and no case has been made out that it allowed others to harass the Complainant base on the fact that she had a mental disability. The Complainant was not discriminated against and the complaint is not well founded

Constructive Dismissal-Discrimination-Disability-Harrassment.