Complainant

Respondent

Parties

Gráinne  Flannery

 Mercer (Ireland)

Representatives

Mary Fay B.L. instructed by A&L Goodbody

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-00054766-001

30/01/2023

The complainant has submitted a complaint under section 77 of the Employment Equality Act that she was discriminated against by reason of her age and disability in that she was not promoted, was denied reasonable accommodation for her hearing disability, and was discriminated against in respect of the conditions of employment.

She says on the complaint form that the most recent date of discrimination was on January 19th, 2023.

By way of a preliminary case management exercise the complainant was given the opportunity to identify and specify the specific incidents which gave rise to the alleged discrimination.

She had earlier made a lengthy written submission setting out the narrative of events related to and surrounding her complaint from which it was not immediately apparent where specific incidents arose that could be said to represent breaches of the Act.

Following a brief, twenty-minute adjournment, she agreed that the hearing would proceed on the basis of three incidents which she alleged represented breaches of the Act.

The first alleged breach identified by the respondent occurred on November 29th, 2021 and related to the conduct of interviews held by the respondent.

The second Incident occurred on January 12th, 2022 and arose from questions that were put to her by a member of staff employed by the occupational health service provider.

The final alleged breach of was alleged to have occurred on January 9th, 2023 and arose from an alleged failure on the part of the respondent to give her contact details for an external occupational health service provider.

The complaint was submitted on January 30th, 2023, which gives rise to some further preliminary issues related to time limits as the first two of the above incidents took place respectively fourteen and twenty-two months prior to the submission of the complaint and are therefore not made within the statutory timeframe.

An Adjudicator has no discretion to extend the cognisable period beyond twelve months.

This means that only the incident on January 9th, 2023, is properly within the time limits.

The complainant submitted a very detailed narrative covering the period from her first appointment with the respondent until the end of her period there. (For the reasons outlined above, i.e., that most of it falls outside the time limits for making a complaint, it is not replicated here).

The incident that occurred on January 9th, 2023, arose from an earlier disputed Occupational Health assessment carried out by an independent OH provider.

The complainant wished to contact the OH provider and contacted the respondent HR department to get the contact details. The respondent declined.

Information was provided on the other incidents which were outside the time limits.

The respondent says that in respect of the only issue that remains within the cognisable period the complainant has not made out a prima facie case of discrimination.

It notes that this incident was not referred to in the complainant‘s submission or on the complaint form.

In fact, the respondent did not have the contact details for the OH provider sought by the complainant but, in an effort to be of assistance, suggested an alternative means of making contact.

In respect of the second complaint respondent says that no objection was made known to it at the time and that in any event it cannot be held responsible for the actions of independent third-party medical professionals.

In respect of the third point the complainant has failed to identify the reasonable accommodation which she says she sort of which was refused. Again, she raised no objection at the time and has not made out a prima facie case.

In any event these latter two alleged breaches are not within the statutory time limits.

As noted above the complainant made her complaint on January 30th, 2023. Coincidentally, she was also notified on that same day that she was at risk of redundancy and in due course her employment with the respondent came to an end.

Her written submission, running to some five pages sets out a narrative dating back to her appointment in 2019 and also outlining a series of grievances with the respondent, specifically commencing with an interview for promotion on October 29th, 2021.

The complainant was also placed on a performance improvement plan, and sometime later she became unwell; this leading to the encounter with the external OH provider in January 2022 which became the subject of controversy when she took exception to the report by the OH provider, (which had nothing to do with the respondent).

Finally, her position came into consideration for redundancy after these events and that took its course and is not the subject of this referral.

However, she has chosen to bring these complaints under the Employment Equality Acts. On the complaint form she identified the alleged breaches as being that she was not promoted, was denied reasonable accommodation for her disability, and was discriminated against in respect of the conditions of employment.

The only promotions-related event (and the reasonable accommodation complaint also appears to refer to this; she complained about that interview not being ‘deaf friendly’) was in November 2021. It is well outside the cognisable period for the making of a complaint.

As has been seen from the above the only incident within the statutory timeframe is a trivial matter related to a request for contact details which could not remotely be said to ground less favourable treatment or a breach of the Act. For example, there is no comparator, it does not relate to her disability etc.

The complainant was clearly nursing a longstanding grievance against the respondent (and the external Occupational Health provider), but she had available to her the usual options under the respondent’s grievance machinery to address these when they arose, and she failed to do so.

That failure would not, of itself deny her the right to seek a remedy under this legislation, except that she would have to make out a prima facie case and do so in respect of alleged breaches that occurred with the statutory time limits for making a complaint.

She has failed to do either of these things and her complaint is not well founded.

For the reasons set out above complaint CA-00054766-001 is not well founded.

Equality, time limits.