Complainant

Respondent

Anonymised Parties

A healthcare worker

A provider of healthcare services

Representatives

Self-represented 

Mark Comerford IBEC

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-00049543-001

06/04/2022

The complainant alleges discrimination on grounds of race and disability; the respondent rejects the allegation.

On the 6th April 2022, the complainant referred a complaint pursuant to the Employment Equality Act on grounds of race, disability and victimisation. She sets out longstanding back and hand issues, subject to flare-ups, as well as other issues arising from having Covid-19 including related to her mental health. She outlined that her August 2021 grievance was never dealt with, and she was victimised by her then sudden redeployment. She was told that she was redeployed because she only had an automatic driving licence. She only met the person hearing the grievance in January 2022.

In the correspondence of the 21st September 2021, the complainant outlined that she has been in receipt of demeaning treatment at the hands of a named manager. She cites that the reasons for the redeployment were not communicated to her and not done normally, per LIFO. She cited her unhappiness at learning of the redeployment in a conversation with another manager about her driving licence.

The complainant raises the issue of a colleague returning from Asia in March 2020 without the Covid-19 protocols being implemented by the respondent, as well as the lack of hand sanitiser at work. She also cited the health impact on her of having had Covid-19 and that her request for support was not addressed by the respondent. She refused to work at a different facility because she was wrongly informed that all service users and staff would be tested. She cited the contents of the occupational health referral and why they related to anxiety stemming from the redeployment and not the flare-up as expected. The complainant outlined that she ‘championed’ the collective complaint made by the employees on the 30th June 2021. She raises the need for continued accommodation regarding manual handling because of her hand.

The complainant attended the grievance meeting of the 28th August 2021. This addressed her driving licence status, her occupational health assessment, and the transfer. By email of the 7th September 2021, the complainant referred to the notice of transfer and that she could not do the full manual handling the new role involves. She stated that the transfer was victimisation for the driving licence issue. The complainant raised issues on the 15th and 17th June regarding health and safety at the respondent facility.

Cross-examination of the complainant

The complainant’s disability was severe tiredness arising from Covid and an issue with sleep. She had back pain and an injured hand, caused by a client pulling her hand. She was fit to work. She had no medical certificate saying she had long Covid. She outlined that the calls from the occupational health provider about getting tested for Covid were harassment. She stopped picking up the calls. She was harassed on her day off to work in the other facility. She was not informed that there were two occupational health referrals and was shocked when the referral was different and related to the shift at the other facility.

It was put to the complainant that she had expressed anxiety about attending the other facility and this was why it was included; she replied that it was not fair to send her to work in a Covid ward when she was recovering from Covid. It was put to the complainant that her level of anxiety merited the referral to occupational health; she replied that everyone should then have been assessed. She went to the occupational health assessment blindfolded.

In respect of the transfer, the complainant accepted that there was an expression of interest sought beforehand. She did not apply for a named role because of the reference to needing a driving licence.

Closing of the complainant

The complainant outlined that her complaints were overlooked by the respondent. The respondent did not avail of the processes in place. She spoke of the treatment of ‘certain people’ for example the lone person changes were made to suit a white Irish employee and others were accommodated and she was not.

Evidence of the Social Care Leader

The witness is now a Person in Charge and previously a Social Care Leader. In January 2021, she spoke with the complainant about redeployment, and this was to the facility with a Covid outbreak. The complainant declined the shift, so the Social Care Leader referred this to a line manager. She was not provided with a cert from the complainant regarding Long Covid. The complainant had not obtained a manual driving licence. In cross-examination, it was put to the Social Care Leader that she had informed the complainant on the 5th August 2021 that the Person in Charge had told her the complainant was ‘next in line’. The Social Care Leader replied that this was not their process. They looked to the needs of the facility and driving was the first criteria. The Social Care Leader and the complainant discussed the transfer, but not that she was ‘next in line’. It was put to the Social Care Leader the complainant declined the Covid redeployment because she would have to wear full PPE and was struggling to breathe.

Evidence of the Person in Charge

The Person in Charge said that she was still in charge of a named facility, from which the complainant was transferred from. An internal report highlighted that the need for additional nursing care, in particular for intimate care. They sought to recruit a nurse. HIQA were not satisfied that this was sufficient and wanted assurance that the nursing care would be available 7 days per week. The facility was given ‘substantial compliance’ and they then needed to bring in the transfer. The compliance plan required one additional nurse.

The Person in Charge outlined that she had previously assured the complainant that she could avail of the respondent processes and procedures. She had spoken to the complainant about her professional communication.

The Person in Charge said in respect of her facility, they had set out proposals to end lone working and have gender specific care for a named resident. The complainant and colleagues challenged this as gender discrimination, and the Person in Charge met them.

The Person in Charge spoke to the complainant after completing the Masters regarding her career progression. She encouraged the complainant to apply for management roles.

The Person in Charge said that she had provided accommodation to two staff members with Long Covid, including working from home and 80% hours. The respondent moved people to non manual handling roles.

The complainant had outlined experienced severe trauma from getting Covid in the context of the redeployment to the facility, as well as manual handling. They agreed that the complainant would be seen by occupational health.

The Person in Charge said that there was no ‘line’ regarding transfers and staff were transferred according to what was needed.

In cross-examination, the Person in Charge said that the review in 2020 had driving implications as two of the clients took many trips. The Person in Charge therefore raised the driving licence issue with the complainant in June 2020. The complainant could not do trips in the two manual vehicles. The Person in Charge said that she would try to source an automatic vehicle. The complainant not being able to drive the manual vehicles caused a gap and this became an urgent need following the HIQA assessment. HIQA recommended the increase in nurses on the 14th July 2021.

In respect of the day of annual leave, the Person in Charge said that she was not sure whether employees accrued annual leave while on Covid leave. This was why the complainant lost the day, but this was reinstated. The Person in Charge did not accept that the complainant was harassed over the driving licence. There was an informal conversation in 2020 and it then became an urgent need in 2021.

In respect of the transfer, the Person in Charge said that the complainant was the best person to transfer, and it was not personal. The complainant had the skill set for the other location and did not have the skill set for driving in the facility she then was. It was put to the Person in Charge that the complainant had no problem with the transfer felt victimised; the Person in Charge replied that they had to act by the 27th September and to transfer a nurse into the facility. The Person in Charge said that LIFO was applied informally to transfers once all other approaches were exhausted. They looked at expressions of interest first and then, service user needs and staff skillsets e.g. drivers or swimmers. LIFO was only applied after that. In this case, nine were drivers and there were a number of non-swimmers. The respondent transferred in a swimmer.

It was put to the Person in Charge that the respondent should have provided a car she could drive; the Person in Charge replied that vehicles were adapted to the needs of the service user. Driving was the main reason for the complainant’s transfer, and they would have looked at swimming afterwards. The Person in Charge disputed that staff in the first facility were left on their own. It was put to the Person in Charge that the complainant had submitted a report regarding four behaviour incidents on the 10th November 2019; the Person in Charge replied that she asked the complainant to make changes to the document to allow the incident report to be completed correctly. It was put to the Person in Charge that the response was always how to make the report look better.

The Person in Charge said the colleague who had travelled to Asia at the start of the pandemic was not considered a close contact, according to the guidance. The Person in Charge could not recall whether she had contacted the complainant about the Covid test. The Person in Charge did not accept that there was any difference in the occupational health referral. The assessment was delayed to May as the complainant had wanted a face to face assessment.

The complainant had not sought an accommodation in May 2020 and had not said that she had Long Covid. The complainant raised concerns about manual handling but there was no information on file. Regarding the August 2020 manual injury, the Person in Charge said she was aware the complainant had raised the incident and the complainant was advised to fill in a form. The complainant could have escalated the supervisor’s decision not to remove early hours from the complainant.

In additional evidence, the Person in Charge said that the lone worker policy was implemented in 2018, removed but then reinstated. The complainant was injured by the client in 2020 and there was a general increase in low level behaviour.

Evidence of the Residential Programme Manager

The Residential Programme Manager said that ‘deployment’ was to cover staff shortages arising from the pandemic. A ‘transfer’ could happen at any time; the person stayed in the same role but moved location. Transfers are unpopular as people want to stay where they are. If there is no take-up to the expression of interest, they identify the residents’ needs and base the transfer on that. LIFO might only apply where the needs and skills are all the same.

The Residential Programme Manager could not recall the conversation with the complainant regarding the advertised managerial role. She would not say to anyone not to apply for a role, and they encouraged staff to go for promotion.

In cross-examination, the Residential Programme Manager agreed that she had met the team about their concerns and worked through their issues regarding the facility. She had also addressed the complainant’s concern at the deployment. The complainant’s email said that the Residential Programme Manager had victimised her, so the Residential Programme Manager could no longer act, and the matter was referred to HR.

The Residential Programme Manager acknowledged she received the email of the 15th August and had started addressing the issues. The Residential Programme Manager knew she was to meet the complainant on the 27th August and may not have replied to the email. She accepted that the meeting was uncomfortable, and the complainant was angry. The Residential Programme Manager said that the driving licence issue was the reason for the transfer, and they needed drivers.

The Residential Programme Manager had not been aware of the complainant’s underlying conditions when asking her to deploy to the named facility. The complainant agreed to the occupational health referral. There was no medical reason not to transfer the complainant. The Residential Programme Manager said that the complainant was offered another occupational health referred. She said that the respondent relied on the occupational health reports.

Evidence of the HR Officer

The HR Officer said that the complainant’s referral to occupational health was delayed due to requiring a face to face consultation. The grievance meeting was held in December 2021 and arose from the complainant’s email to the Residential Programme Manager. He sent the complainant the Dignity and Respect and Grievance policies. He was concerned at the racial element. The complainant said that this was not because of race but because she was outspoken. They discussed the grievance policy. The complainant stated that the harassment was Person in Charge raising the licence issue. The HR Officer said that paying for driving licences and an electronic car were outside scope. The complainant raised the phone calls around the deployment and the HR Officer replied that this was a time of crisis. The HR Officer said that Covid information about others could not be shared.

The HR Officer did not give a written response to the grievance meeting, due to pressure of work. He had gone through the email and stated the position. The grievance was without merit.

In cross-examination, the HR Officer said that not getting back to the complainant was an oversight and nothing personal. He had since left the job. It was put to the HR Officer that the procedure was not applied to the complainant, and she had raised the issue of race. The HR Officer said that the complainant had said in the call that this was not to do with race. The complainant said she did not mention race at all as they were talking about the issues in the complaint.

Closing of the respondent

The respondent outlined that it was obliged to refer the complainant to occupational health. A prima facie case of discrimination was not made out and the complainant was treated the same as other employees. The contract of employment allowed for transfer.

The first thing to say about this case is to record the impressive work record and evidence of the complainant. She is clearly a very good social care worker, who has sought to develop her professional skills through completing the Masters. A point of contention in this case is the transfer. Even though the complainant was critical of the manner of the transfer, she acknowledged that she was now caring for a service user, whose health situation had declined, but who she knew from a previous post. That perspective and that continuity of care have huge value.

This is a claim of discrimination. The question is whether the complainant can point to less favourable treatment which arises from either race or disability. The test for causation is whether there are facts of such significance that raise the inference of discrimination.

Having considered the evidence, I find that the complainant was poorly treated but there is insufficient evidence to make out that this arises from either discriminatory ground. The less favourable treatment includes the transfer, the occupational health referral, and the deployment to another facility. The complainant clearly raised these concerns, for example the email of the 15th August 2021.

The respondent is able to defend this case because of the veracity of the evidence adduced by its witnesses at the hearing. This illustrated that what happened was not on grounds of race or disability. The respondent emphasised that it was entitled to act on the contract of employment, for example the referral to occupational health, redeployment for Covid cover and the transfer. A contract of employment is a two-way street, and the employee is also entitled to rely on its terms. There is a theme in the evidence that every time the complainant raised on issue, it had to be reformulated to fit a certain process. The issues ought to have been processed immediately. The most significant concern is that the grievance process took so long and was undertaken completely at variance with the procedure and SI 146/2000.

The complainant, for example sought to raise the incidents of the 10th November 2019, but the complainant was told she needed some other document to report this. Ditto for the August 2020 manual handling incident. The complainant raised details complaints on the 15th August 2021 and the respondent should have addressed these concerns promptly and directly. They should have been addressed separately to the transfer and not at the meeting of the 27th August 2021.

I accept the complainant’s evidence that she did not withdraw race at the grievance meeting. The course of the grievance meeting was the person hearing the grievance going through each point and saying why it did not stand up. It was not a grievance hearing, but the presentation of management’s position. The grievance process in December 2021 was greatly delayed and greatly deficient. There was no written outcome.

While there are these shortcomings, a discrimination claim is about less favourable treatment on grounds of say, race or disability. At the end of the hearing, the complainant spoke about ‘certain people’ getting better treatment, this is the essence of a claim of discrimination. There was insufficient evidence presented in this case. There is no evidence of victimisation following the making of this claim or raising these issues.

CA-00049543-001

I decide that the complainant has not established a prima facie case of discrimination on grounds of either race or disability.

Employment Equality Act