Complainant

Respondent

Parties

Seán Hussey

Irish Shared Administration Centre Ltd

Representatives

Self-represented 

Mary Fay BL instructed by A&L Goodbody 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-00048930-001

03/03/2022

The complainant asserted that he was discriminated against on grounds of disability and that the respondent had failed to provide reasonable accommodation. He asserted that he was discriminatorily dismissed and victimised. The respondent denied the claims.

Evidence of the complainant

The complainant outlined that he felt unwell during a Teams meeting on the 11th March 2021. The complainant then took some time off and gathered some strength during this period of leave. He sent the email of the 18th April 2021 setting out grievances and highlighting the risks to his health. He outlined that he was shut out and cut off. Nothing was done about the grievances and the respondent had not heard his cry for help. The risks he highlighted were not taken seriously and the respondent would have acted differently if these were issues arising in a plant or workplace. The respondent should have acted in the same way for risks arising from working from home.

The complainant said that he was promised additional work, but this was not sent to him. The period from the 16th July to the end of the month was really difficult. This was a relapse, but he now had tools to deal with it. The employer was not understanding what he was saying, and the only option was to resign. He was struggling to find value in life, and they did not understand what mental illness was like. He wrote his resignation raising issues and the lack of action. Little things could have helped, and he asked for a 4 day week which his named predecessor had worked.

After his resignation, the complainant was on Illness Benefit and then Jobseekers Allowance. He looked for work in July 2022 and now worked a four-day week, which was very helpful.

The complainant said that he started with the respondent in November 2012 as an accountant. He worked under a named manager, and it was very busy. It was plain sailing until 2017 when he moved roles. He did not want a role with downtime in management accounts. He was also given an IT role on new projects. In 2018 the content of his work was diminishing, and he constantly asked for work. The role was intense for two weeks where there were long hours and he achieved process times to finish up earlier.

The complainant said that he had a breakdown the day before the meeting of Thursday 11th March. He did not input to the meeting and Ms Dunican spoke to him afterwards. A colleague also contacted him. The complainant started psychotherapy. He had been working from home since March 2020 and continued to do so until his resignation. The complainant said he wanted a 4 day week or to take time off. He wanted time to be resilient and suggested a week on or a week off. There were slow periods and much of the work was not urgent. He said that he was shot down and the respondent would not change the work, causing him to disengage.

At the informal meeting of the 20th May, the complainant raised a bullying issue and blame was put on him. The complainant he was subjected to a 12.5 minute phone call from his manager berating him and his education. He raised these issues again on the 18th April. He was brought back on the 11th May but was idle as no more work was assigned to him. The respondent did not see how he was in trouble, and he was left there. He said that a little could have helped a lot and not having work was discriminatory. The office was then semi open and there were people in in IT and accounts payable. Finance was only allowing one person in per day.

Cross-examination of the complainant

The complainant said that he spent the first two weeks of every month reconciling the information from the previous month. He had raised that he did not want any downtime at work. He regularly said that he was bored and asked for more work. The work reduced in the pandemic as locations locked down. It was put to the complainant that he did not need an accommodation for the work he was doing; he replied that he needed accommodation for when there was no work. The 11th March 2021 was the first time that he had raised an issue with his mental health. The issues started the previous summer, and the employer did not know of these issues beforehand. It was put to the complainant that going to a psychotherapist was not evidence of a disability. It was put to the complainant that the return to work certificate was unconditional. He said that he felt that going back to work would be beneficial to him.

It was put to the complainant that the respondent believed that the mental health issues had been temporary, and the certificate just says that the complainant was fit to return. It was put to the complainant that the Occupational Health report does not refer to a 4 day week or one week on, one week off, or a phased return. He replied that the report referred to isolation and there was evidence of my disability and lots of conversations. It was put to the complainant that there was no ongoing disability as of May 2021. He replied that he had notified the respondent of what he needed on the 18th April and had been able to carry out his duties from May 2021. It was put to the complainant that the respondent would not know that the complainant was putting on a show in this period; he replied that being fit is not the same as having recovered. It was put to the complainant that the respondent was not aware of an ongoing issue; he replied that mental health is something that never stops, and this indicates their lack of awareness. It was put to the complainant that he asked for work while on certified leave. It was put to the complainant that he had not been asked to work while on sick leave and asked what urgent matters there were.

The complainant accepted that he had not suggested a 4 day week or one week on, one week off. He did not ask because of the corner he was put in. It was put to the complainant that the email of the 18th May says he can work in the office so long as he told a manager; he replied that this would not have solved the issue of isolation. The complainant accepted that it was reasonable for the employer to comply with the pandemic-related policies. He described that Mr Rea placed him in his box on the 20th May. He said the complainant could not dictate how the respondent managed work. It was put to the complainant that Ms Dunican had misspoken by referring to ‘mental health problems’ instead of mental health issues; he replied that he perceived it as him problem. Ms Dunican had offered an apology the following did and did not appreciate the gravity of what she said.

It was put to the complainant that Ms Dunican did not offer an apology and emailed him additional tasks. It was put to the complainant that the meeting of the 20th May resolved the issues, and he was allocated additional tasks; he did not agree that the TWSS and bullying incident were resolved and should have been progressed. It was put to the complainant that his July 2021 email does not refer to his expectation of a formal grievance commencing in May 2021; he replied that the inability to communicate arose from his ill-health. The complainant said that he was then waiting 8 weeks for follow up. It was put to the complainant that the May 2021 meeting concluded on the basis that the issues were addressed apart from the additional work. It was put to the complainant that the email of the 16th July refers to ‘the point’ not addressed; he replied that this was a typo and should refer to points. It was put to the complainant that there was there an obligation on him to request 4 day week, one week on/off or a transfer, he replied that he was put in a corner. It was put to the complainant that there was no evidence of this, and respondent had provided him with more work as he required. It was put to the complainant that he was aware of colleague on four day weeks. The complainant said that the respondent had to provide a safe working environment and he had sought to get involved in audits but could not do so.

It was put to the complainant that the employer could not magic up work during the lockdown and he did not suggest any other option and had not looked for any accommodations; he said that some staff were overburdened. He said that he asked for a risk assessment at the informal meeting. He had a bad week before he resigned hence the reference to the week. He could not wait for the conclusion of the formal grievance process. It was put to the complainant that the complaint was out of time.

The complainant said that he attended the workplace on two days. He was never placed on lay-off or short time during the pandemic. In closing, the complainant said that his intention was to act reasonably.

Evidence of Orlaith Dunican

Ms Dunican said that the focus of the respondent was on the preparation of management accounts for the parent group. The reporting time was four days. During the pandemic, there was a small amount of trading for example for emergency works by Councils and hospitals. The complainant was looking for more work to do, but business was also down so there was less work. The auditors changed in 2021 and it was not feasible for me to distribute audit work to the team.

In respect of the 11th March meeting, the complainant had said that was not well and that he was feeling low. She rang the complainant after the call as she was concerned. He took the day off and she checked in on him. The complainant did not indicate that the messages were unwanted. She spoke with the complainant on the 22nd March, who informed her that he was signed off by his GP for a few weeks. She said that this was no problem and asked if he could send on anything that was urgent. The complainant then sent them on. She appreciated the email but some of the points would have been covered by his already detailed notes. She took the complainant’s absence very seriously and had told him not to do it if it put him under pressure. She contacted the operations managers to say that she should be in contact with them while the complainant was out of action.

Ms Dunican said that she was surprised to read the complainant’s April 2021 email. The TWSS issue resolved in September or October 2020. He spoke with her about the bullying phone call of September 2020, and she asked if she should follow it up. The complainant said to leave it for now. The complainant said that he then only interacted with this colleague by email.

At the May meeting, Mr Rea explained the situation regarding TWSS approach and acknowledged that the communication could have been better. They explained the position of why they availed of TWSS and said that the communication could have been better. Ms Dunican was aware that the complainant was quieter at the end of the month and agreed to give him more work. This was the action point from the meeting. Nothing was held back from the complainant, who said he was isolated working from home. The respondent outlined that it was still work from home unless absolutely necessary. The offer was made to the complainant to go to the office, but he would have to tell his colleagues so that they did not go to work. The complainant was not happy with this offer.

Ms Dunican said that she never meant to call the complainant’s mental health a ‘problem’ and was just referring to the issue. She did not mean that mental health was a problem to the company and never intended to insult. She had not thought that the phone issue was big for the complainant. She said that at the meeting she felt that they agreed to disagree, and she had the action point to follow up on the additional work. She did not feel that there was to be a formal grievance. She did not recall at all the complainant being shut down for example regarding a four day week or one week on one week off.

Ms Dunican said that the complainant was not happy at the end of the meeting. She did not recall the complainant asking at the meeting for the formal grievance process to commence. The additional work assigned to the complainant was significant and included the budget work which started in July. The complainant never told her that this work was all done in a few hours. She said that there was no work available which he did not assign to the complainant.

After the complainant resigned, Ms Dunican told him that she was sorry it came to this including that the communication regarding TWSS was poor. She was not aware that he had been insulted by her reference to mental health problems. There was a leaving do towards the end of September.

Evidence of Jim Rea

Mr Rea said that he is the HR Manager. He received the complainant’s April email and sought to address this informally. He wanted to come a solution before it got legs. He sent the complainant the grievance procedure. The complainant did not indicate that he wanted to proceed with the grievance immediately after he wrote to him. The complainant attended occupational health, who recommended that the complainant be able to attend work. The complainant did not object to the informality of their meeting, including that there was no note. While communication on TWSS could have been better, this was during the lockdown. By the end of the meeting, he did not think that the matter would progress to a formal grievance. They had addressed the issues at the meeting albeit he was not satisfied by what they had said.

Mr Rea said that the abusive phone call had been addressed by Ms Dunican and the regional operations manager. The complainant did not ask for the matter to be addressed further. Regarding the complainant’s July email, he was not aware that the complainant wanted to pursue the bullying incident or that the additional work had not proved sufficient. The complainant replied to Mr Rea’s acknowledgement and later resigned. Mr Rea said that he would not be blasé about mental health and took it seriously.

Evidence of Noel Murphy

Mr Murphy is Finance Director. He had suggested that the complainant’s April email be sent to HR. He was aware that the May meeting was taking place. He scoped out the extent of the grievances. He was aware that the complainant resigned by the time of their Teams meeting on the 19th August. At the meeting, Mr Murphy asked the complainant what a good outcome would look like for him. Mr Murphy spoke to Ms Dunican and the colleague’s manager about the phone call incident. Their relationship had become cordial per their emails. It took Mr Murphy two weeks to talk to everyone and to prepare the document. Mr Murphy outlined that no one was given a mobile phone and they used Jabber and Teams for communication. Mr Murphy said that his report was thorough, and he called out things that needed improvement.

Closing of the respondent

The respondent outlined that it was not trying to undermine anything the complainant was saying regarding how he was feeling. This is a discrimination claim and the burden of proof is on the complainant to show facts of such significance. The respondent dealt with TWSS in the same way for all employees including how it communicated it. The bullying incident was dealt with, but this is unrelated to a disability as the complainant had not then notified the respondent of any disability. As of March 2021, the complainant said that he was struggling and referred to going to a doctor and a therapist. It did not put the respondent on notice of a disability.

The complainant was entitled to revisit the events from 2020 but these 2020 events cannot be transmuted into acts of discrimination. Regarding the dismissal the complainant has to show that what happened was so unreasonable and that this arose from disability. He was certified as fully fit by the doctors. The occupational health report states that the complainant was well. There was no request for reasonable accommodation. There is a recommendation regarding going to the office ‘if he could be facilitated’. While the complainant says that he found it difficult on his return to work he did not notify the respondent of this at the time. The respondent understands why the complainant would put on a good face, but the respondent was not aware of an ongoing issue.

The complainant was doing all the tasks associated with work and treated the same. He was given all the additional work that could be found. He was 100% able to do the work. The respondent could not magic up an office arrangement because of Government guidelines and this was impersonal to the complainant. People could come into the office and the complainant could have accessed the office. The complainant was allocated more work but never said that he needed more. He did not do so in the July email where he raised 8 questions about the TWSS. There is no reference of the bullying incident. He does not mention that the grievance should have progressed in the 8 intervening weeks.

The complainant resigned after the respondent offered to open the formal grievance procedure. The grievance was heard and was addressed. The respondent was not aware of any ongoing disability. The complainant resigned on the 11th August, and this is the applicable date of dismissal. The complainant may have had a difficult lockdown but working from home and TWSS were applied across the board. There was no evidence of victimisation.

This is a complaint pursuant to the Employment Equality Act. The complainant asserts that there was discrimination and a failure to provide reasonable accommodation, as well as victimisation. He asserts that he was constructively dismissed on grounds of his disability. I have found below that the date of dismissal was the 12th September 2021.

As set out in the written and oral submissions of the respondent, 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.  

It is obvious that the complainant is an accomplished accountant who had many years of service with the respondent in various roles. Like many people, he found the pandemic difficult, in particular the isolation of working from home and the lockdowns. He was clearly unwell on the Teams call on the 11th March 2021 and the respondent can be held to be on notice of the health issues amounting to a disability from that date.

The complainant raised several issues arising in the workplace. They included the bullying issue from the previous September. He sought more work. He raised the need for a phone as he dealt with managers on his own phone. His expectation was that the 20th May meeting was the start of a grievance process, which the respondent did not follow through on. He outlined that the respondent did not take his issues seriously enough and he was excluded from the office.

Taking the complainant’s evidence at its height, I find that there is no fact of such significance that could raise an inference of discrimination. I find that the respondent provided any accommodation sought. The complainant resigned and was not discriminatorily dismissed. He was not victimised for raising an equality issue.

It is significant that the complainant never asked to move to a four-day week or to work one week on and one week off. These were certainly proposals to explore. Given the impact of working from home on the complainant, there was certainly scope for him to ask that he be allowed go in more than others. The complainant was allocated the work there was and given additional work. He did not object to the phone calls from Ms Dunican he received, and I accept that Ms Dunican misspoke. The bullying and TWSS issues were historical. The respondent not providing phones was the same for everyone and this issue was not related to a disability. It is more likely that the only issue outstanding from the 20th May was the allocation of additional work. If this is incorrect, the respondent later carried out a comprehensive grievance process, even after the ending of the employment.

For these reasons, I find that the complainant has not pointed to facts of such significance that raise an inference of discrimination.

Date of dismissal in a complaint of constructive discriminatory dismissal

The respondent referred to Stamp v McGrath (Wexford) Ltd UD1243/1983, a decision of the Employment Appeals Tribunal. It is opportune, therefore, to consider this EAT decision.

In Stamp of McGrath (Wexford), the EAT held ‘It is the Tribunal’s view that since the provisions of Section 1 in relation to ‘date of dismissal’ does not expressly refer to an employee whereas the definition of ‘dismissal’ purports to relate to an employee, that it is fair to assume that the provision of section 1(b) under ‘date of dismissal’ was intended to apply to employers.’

I find that this decision is not persuasive and with respect to the division of the EAT in question, should not be followed. I make this finding for the following reasons. First, the factual matrix. The employee in Stamp v McGrath (Wexford) Ltd did not give notice. He resigned there and then on the 27th June 1983. He sought to rely on contractual notice to get him within time (prior to there being provision for an extension of time).

Second, the decision is based on the fact that the definition of ‘date of dismissal’ does not refer to ‘employee’, but nor does it refer to ‘employer’. It is difficult to discern why ‘date of dismissal’ should apply to one and not the other, when neither party to the employment relationship is mentioned. Of course, it is not surprising that the ‘date of dismissal’ does not mention either employer or employee; this is because it sets out how to ascertain the date of dismissal, whether or not notice was served.

Third, the Oireachtas chose a ‘rolled-up’ definition of dismissal, encompassing three scenarios. They are 1. When the employer terminates the employment relationship 2. When the employee terminates the employment relationship 3. At the expiration of a fixed term contract. It was perfectly possible for the Oireachtas to have given a separate, standalone definition and not to use ‘dismissal’ when describing the situation of the employee terminating the employment relationship. Instead, the Oireachtas defined the situation of an employee terminating the employment relationship as a subspecies of ‘dismissal’.

Having made this legislative choice, the Oireachtas defined ‘date of dismissal’ without mentioning either employer or employee, nor distinguishing between the three types of dismissal. There is, therefore, no basis to exclude the situation of the employee terminating the employment relationship from ‘date of dismissal’.

As noted, the EAT in Stamp v McGrath (Wexford) Ltd based its decision on the definition of ‘date of dismissal’. I note that ‘date of dismissal’ is not defined in the Employment Equality Act. Even if this decision could be persuasive, the absence of a “date of dismissal” in the Employment Equality Act means that this authority cannot be read across to a discriminatory constructive dismissal claim.

I find as fact, therefore, that the date of dismissal in this case is the date the employment ended, i.e. at the end of the notice period given by the complainant (12th September 2021).

CA-00048930-001

I decide that the complainant has not established a prima facie case of discrimination and there was no failure to provide reasonable accommodation. The complainant was not discriminatorily dismissed and was not victimised.

Employment Equality Act / disability / date of dismissal