ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00041085

Parties:

	Complainant	Respondent
Parties	Helen Hennessy	Sparantus Limited Highfield Healthcare

Representatives

Sean Ormonde & Co., Solicitors

Hugh Hegarty, Management Support Services (Ireland) Ltd

Complaints:

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-00052276-001	17/08/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00052276-002	17/08/2022
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014	CA-00052276-003	17/08/2022

Date of Adjudication Hearing: 31/10/2023

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant is a "Volunteer Coordinator” (VC) (The job title is ambiguous, so for clarity, her role is as coordinator of volunteers; she is an employee and not herself a volunteer.) She complains that she has been the subject of breaches of the Employment Equality Acts and the Protected Disclosures Acts as set out below.

The case was initially heard on July 12th, 2023 and adjourned with the specific agreement of all parties to enable evidence to be heard from a specific witness who was not in attendance on the day of the first hearing.

The complainant was also invited to make a submission on the law related to associative discrimination.

In the event, when the case was re-listed for a hearing, the complainant declined to attend, further comment on this appears in the Decision below.

Summary of Complainant’s Case:

The complainant commenced her employment on June 1st, 2016 but hasbeenon sick leave since September 2022. Her role includes the selection and recruitment of suitable candidatestohelpsupportresidentsandtheirfamiliesandto support the level of service offered by staff.She works with the volunteersupervisorand provides support tonewvolunteers.

On June 8th, 2022, the complainant received a phone call from her line manager telling her of the decision by the respondent to move one of the volunteers from her role in the coffee shop, Ms. Niamh Thornton (NT) who has Down Syndrome.

NT commenced as a volunteer with the respondent with one of the activities’ therapists in September 2022. Then it was decided that she might be better suited in the catering department. Her father is also an employee and he hoped to see his daughter employed.

Her duties in the catering department involved cleaning tables and operating the till. She was twenty-one at this time and had been in her position as a volunteer in the coffee shop since February 2022, a total of four months before the complainant received a call to remove her.

The complainant was concerned about this decision as she thought, NT had been excelling in her role. Up until June 2022, no concern had been raised about her capabilities. As the VC, any issues with the performance of a volunteer should have been brought to her attention before any decision in relation to her was made.

The complainant voiced concerns about this decision with Ms. Ryan, who stated that it was due to “health and safety concerns." But forfourmonthstherehadbeennoincidentregardingtheplacement and things weregoing well.

The complainant informed Ms. Ryan that it was a long term aim of NT to work her way to a paid full-time position in the catering department. Ms. Ryan stated that, according to HR, this "was never going to happen". Further, Ms. Ryan stated that Ms. Thornton "needed the HACCP qualification to work in catering" and that she "wouldn't be able to pass that course."

The complainant communicated this decision to NT’s father via text message stating.

"Are you still around Declan?? I just took a call from Laura Ryan regarding Niamh in the coffee shop. They are pulling the health and safety card and saying that she is at risk in the coffee shop now - as it's been getting busier. They don't want her to continue there. Apparently, Maeve from HR was in the middle of discussions too and they can't see Niamh being offered a position in the catering department in the near future. Cecilia only told me a few weeks ago that Niamh was getting on grand and using the till and everything. I'm stunned as wasn't expecting this. "

The complainant stated that she did not instigate or agree with the decision and that she felt that it was discriminatory. She also offered Mr. Thornton any support he might need. After receiving this text, he rang the complainant and said he was disappointed at the decision and annoyed that the decision had been made in the absence of any consultation with him or the VC.

The complainant understands that Mr. Thornton showed the text message to his manager. Having spoken to Mr. Thornton she sent him a second text message asking him to call up to her the following day to discuss it and again confirming her annoyance about what had occurred as follows.

"Hi Declan. Will you call up to me in the morning pis? I'm not happy with this situation at all. I feel its discriminatory. Maura should have highlighted this health and safety thing in the beginning. It was her call to assign Niamh to the coffee shop. She should have got her haccp trained then."

He came to see her the following morning and he and his manager Mr. Andy Brophy requested a meeting with the chief operations manager, Ms. Gerada Warnes which took place on June 10th, 2022. The complainant was told that Mr. Thornton requested that the decision be reversed. The complainant's text communications emerged during the meeting, and he was asked to submit all emails and texts from the complainant relating to the matter.

On June 13th, 2022, Ms. Warnes called for an investigation into the complainant's communications with Mr. Thornton.The respondent consequently suspended the complainant from her duties by on June 13th, 2022, pending an investigationalleging, interalia.

"Sending insensitive and misguided text messages to a colleague which caused significant upset and concern" and "Alleged discriminatory actions from Highfield Healthcare".

The complainant was asked by HR to leave the premises. AninvestigationmeetingwasscheduledforJune 16th, 2022, and she wassent witnessstatementsfor the investigationmeeting on June 15th,2022.

Mr. Thornton (the father) was not interviewed during the process, although he told the complainant that he did not want his daughter volunteering elsewhere other than in catering. This is supported by the statement made by Mr. Thornton to Colm Bracken during a follow up meeting on July 25th, 2022. These meeting notes specifically state the following noted by Colm Bracken:

"He said that he took it was a "heads up" from Helen and said Andy Brophy took a different meaning and said that Helen had no right to be putting that in a message to He said that there was no mention of another role. His impression was that it was all very hasty and that there was a row back the following day. He felt it was badly handled.

"if the issue was a training matter, the first thing from Declan's perspective was to see if training could be provided. "

"From Declan's perspective-Niamh was a volunteer, Laura should have gone to Declan talked about her training-get a solution rather than moving Niamh. The plan was not to have her in the coffee shop but his impression there was not a clear plan thereafter as an alternative and that there was backpedalling when it kicked off"

"He does not want anyone to get in trouble, he felt that the text was a heads up from Helen, and Helen had been supportive of Niamh and had helped train Niamh around induction to role. "

Thesestatements ofDeclanThornton completely contradict the respondent's reason for the investigation and subsequent discipline and finding of gross misconduct against the complainant.

The respondent claimed that she had sent "insensitive and misguided text messages to a colleague that caused significant upset and concern" and alleged that it had no alternative but to suspend and investigate the complainant 's actions due to "the level of upset" she had caused Mr. Thornton.

However, this was untrue. It is clear from Mr. Thornton's statement that he was not upset by the communications of the complainant and if anything, he was appreciative of the "heads up." What he was upset about was the decision to relocate daughter and how it was handled.

It is clear that the respondent's intention was to punish the complainant because she highlighted their poor handling of the transfer of NT.

The complainant attended the investigation meeting onJune 16th,and it emerged that there were already plansin placetorelocate NTto analternative role within the respondent.However, thecomplainant asserted in thismeetingthat shehaddiscussedherconcernsatlengthwithMs.Ryanduringtheircall.Noalternative arrangement forMs.Thornton wasmentioned to her by Ms.Ryan.

The complainant was confident however that she could find NT an alternative role however as noted above, but her father was not in agreement with this.

The complainant requested that Ms. Ryan, her line manager and the person she had received the information she based her texts on, be allowed to attend that meeting as a witness for her. Ms. Ryan failed to contribute anything to that meeting stating when called upon by the complainant that "I can't say anything". It is noteworthy that Ms. Ryan's statement as a witness was very brief.

Thecomplainant putforwardin herdefence thatshewassimply voicing herconcernsabout a situationwhereayoung,capablevolunteer,whowasexcellinginherrolewassuddenly, to the best of her knowledge, being removed from that role with no good reason or consultation and in circumstances where she had performed the role well for four monthswithoutanycomplaintorissue.

The complainant had honestly believed that there was a discriminatory basis to what she saw as "getting rid’' of NT from that role suddenly and without good reason. The complainant believed she was advocating against an act of inequality and discrimination in the workplace. It is submitted that this constitutes a protected disclosure under the relevant legislation.

The complainant asserts that Ms. Ryan had made it abundantly clear during her phone call, that NT was notgoing to be keptonasa volunteer in catering, and that this was thecomplainant's clear understanding, which is why she did not clarify the matterwithanyoneelse.

In fact, she asserts that she told Ms. Ryan that “Declan is not going to be happy with this" and contends that if there had been issues with health and safety, she should have been involved in any meetings about NT and her future with the Company, which did not occur. It subsequently transpired that Niamh was moved to a different role, once again in the absence of any consultation with the complainant in her role as Volunteer Co-Ordinator.

The complainant was provided with minutes of this investigation meeting via email the following day. She was also sent a letter from Ms. Sheehan and Ms. Yvonne Keogh, Head of IT, which concluded that the complainant had engaged in "gross misconduct" and that a disciplinary hearing was to be held as an outcome of the investigation. This decision was made in the absence of any input from the individual who it was purported was "upset" by the complainant 's messages.

On June 17th the complainant was invited to a disciplinary hearing to take place on the 20th with the Director of Nursing and the HR Business Partner. This meeting was later rescheduled to 23rd June 2022 the Assistant Director of Nursing and the HR Business Partner.

The complainant raised queries regarding the investigation and as a result the disciplinary meeting on June 23rd, was adjourned briefly adjourned, so that the Disciplinary committee could read the complainant's letter. It then reconvened briefly, and the complainant was informed that she would be told of the decision. This meeting lasted about fifteen minutes.

The respondent subsequently communicated the outcome of the disciplinary process by letter dated June 30th, 2022, in which it was confirmed that a finding of gross misconduct had been upheld and a final written warning was to remain on the complainant 's file for a period of twelve months as sanction. The complainant appealed.

The complainant's mental health began to deteriorate under the stress caused by the shambolic disciplinary process and the finding of gross misconduct against her. She was of the view that this was a misunderstanding and miscommunication at best.

The complainant and her family also rented their home at that time from the respondent, and she was now gravely concerned about losing her home which she shared with her family. The complainant attended her GP and was prescribed sleeping tablets and anti-anxiety medication.

The complainant appealed the finding on July 6th, 2022, and an appeal meeting was held on July 21st, 2022. At this appeal meeting the respondent had still not spoken with Mr. Declan Thornton or received any statement whatsoever from him. When the respondent subsequently spoke to Mr. Thornton, he was extremely complimentary and supportive of her.

Meanwhile the complainant returned to work and the respondent appeared to have broken its own confidentiality requirement under the disciplinary procedures, as it appeared to be common knowledge amongst colleagues that the complainant had been suspended and disciplined.

The complainant learned from a work colleague that her appeal documentation had been left uncollected on the printer for some hours that afternoon until it was discovered by the receptionist. This meant sensitive personal data and information regarding her disciplinary process was accessible to others.

She received the outcome of her appeal on August 4th, 2022. The finding of gross misconduct was upheld, and the sanction of a final written warning was to remain on the complainant's file for twelve months. She worked under duress until the end of August and following a period of annual leave, she found that she could not return to work and has remained on certified sick leave since.

The respondent’s Ms. Sheehan emailed the complainant on December 14th, 2022, to request a welfare meeting on January 4th, 2023, while the complainant was out on certified sick leave due to stress. However, given the complainant's history with Ms. Sheehan and her involvement in her disciplinary, the complainant felt that there would be a conflict of interest in any welfare meeting in which Ms. Sheehan participated. The complainant responded outlining this on January 4th 2023.

In the interim, the complainant remained unwell.

She says that she was discriminated against by the respondent and victimised and penalised as a result of raising an issue in relation to the perceived dismissal of a disabled colleague, without any evident or obvious reason.

Summary of Respondent’s Case:

The respondent says that the complaints are without merit as the implementation of a disciplinary process and issuing of disciplinary sanction where it is justified, and fair cannot be discrimination or penalisation under the Acts.

The complainant acted irresponsibly and unprofessionally, the matter was subject a full investigation, disciplinary hearing and appeal; the process in which the complainant was issued a final written warning was conducted in line with best practice; it was fairly conducted with the finding of gross misconduct justified and the sanction of Final Written Warning proportionate in the circumstances.

The complainant began her employment on June 15th, 2016, as a volunteer coordinator.

On June 8th, 2022, she received a phone call from her line manager to inform her of a decision made in relation to a volunteer. She was asked to speak with the volunteer to tell her that there was going to be change in her workplace as there were Health and Safety concerns.

The Manager Ms. Laura Ryan gave evidence in the investigation that the conversation with the complainant included a discussion about alternative roles within the organisation.

On June 8th 2022, the complainant contacted the volunteer's father, who is an employee for the respondent. The complainant sent two text messages which read as follows:

First Text Message

"Are you still around Declan?? I just took a call from Laura Ryan regarding Niamh in the coffee shop. They are pulling the health and safety card and saying that she is a risk in the coffee shop now. - as it's been busier now. They don't want her to continue there. Apparently, Maeve from HR was in the middle for discussions too and they can't see Niamh being offered a position in the catering department in the near future. Cecilia only told me a few weeks ago that Niamh was getting on grand and using the till and everything. I'm stunned as I wasn't expecting this.

Second Text Message

"Hi Declan, will you call up to me in the morning pls? I'm not happy with this situation at all. I feel it is discriminatory. Maura should have highlighted this health and safety thing in the beginning. It was her call to assign Niamh to the coffee shop. She should have got her HCAPP trained then.

The messages upset the father of the volunteer who worked in the facilities department, and he approached his manager about them. The manager shared the messages with Chief Operations Officer Who in turn contacted Human Resources.

Following these events, the complainant was invited to an investigation about her behaviour in line with the company disciplinary policy. She was placed on suspension pending the investigation, informed of the allegations, outlined the investigation process, and advised the complainant on her rights.

The matter was fully and fairly investigated by the respondent. The investigator interviewed five witnesses and complainant and concluded on June 17th, 2022.

The matter was referred to a disciplinary process and the complainant was invited to attend a disciplinary hearing the hearing held on June 23rd, 2022, and the disciplinary officer was Alex Teehan Assistant Director of Nursing and Mairead Bolan, HR Business Partner.

The outcome of the disciplinary hearing was issued on June 30th. The finding of the disciplinary officer was stated as follows:

Having given the matter a lot of consideration, I am satisfied that the allegations against you are founded. I am conscious that any sanction must be fair and proportionate, and I have considered the range of sanctions that could be invoked, namely placing a warning on your file, suspension from duty without pay, or dismissal. Highfield Healthcare have a duty of care to provide a safe and respectful environment for our employees and residents therefore, I am satisfied that a final written warning is the only fair and proportionate sanction applicable in this instance.

Therefore, I have concluded that your behaviour, in accordance with company disciplinary procedures, is considered Gross Misconduct and in line with this and taking into consideration the seriousness of your actions I have concluded that this issue warrants a Final Written Warning. Please be advised this warning will be stored in your personnel file and will remain active for a period of 12 months, further disciplinary offence within this timeframe may result in disciplinary action up to and including suspension without pay or dismissal. In line with the company disciplinary procedure, you have the right to appeal this decision should you wish to do so. In the event you wish to make an appeal you must do so in writing to the HR department within seven days of receiving this letter. The appeal must state the grounds for appeal, whether on the facts of the case, the disciplinary action applied, or both.

The complainant was afforded the right of appeal and did so in accordance with the Disciplinary policy. The respondent appointed Mr. Colm Bracken to hear the appeal and he was accompanied by Mr. Hugh Hegarty, Management Support Services.

The appeal outcome was issued on 4th August 2022. The outcome of the appeal was to uphold the sanction of final written warning, The appeal was considered all aspects and representation made by the complainant, the appeal officer in addition considered the investigation report including the notes of interviews and witness statements, the disciplinary outcome, the document of appeal the appeal hearing, and the original text messages sent to the complainant colleague.

The appeal found that the complainant had acted inappropriately and stated:

On examination of the full matters and by your own account, you knew and anticipated that there were sensitivities in delivering the communication to Declan. While you admitted you were unhappy with the decision, you did not seek to meet, clarify, or raise your concerns. You then communicated a message that was not fully factual and professed your opinions that were speculative and potentially divisive. This gave rise to upset. In relation to substitution, the question that arises is if another individual coming from the same role, posseting comparable experience in the organisation would behave or act in a similar way. I would form the view that this would not be the expected behaviour or conduct of a person with this level of experience working in an organisation for seven years.

I cannot find in your appeal any substantive reason as to why the allegations and decision should not be upheld. You have put forward no facts to dispute the findings of the investigation. It is agreed that the messages were sent in your capacity as Volunteer Co-Ordinator and that you could have handled the situation differently.

I agree with the Disciplinary Officer that the content of the messages was insensitive, and factually incorrect and made allegations of discrimination against Highfield Healthcare which have clearly brought the name of the organisation into disrepute. The actions have also caused upset to colleagues and that the decision to send the messages did demonstrate poor judgement.

The purpose of the Disciplinary policy is to correct the actions and behaviours of employees and considering the previous unblemished disciplinary record, level of responsibility and remorse, I find that a final/written warning would be sufficient to correct the behaviour. Further I concur with the disciplinary Officer regarding our expectations going forward:

0That your actions, conduct, and communications are professional, appropriate, and respectful towards your fellow colleagues

You do not bring the Organisations name into disrepute

If you require clarification on any issue you speak to your manager

Recommend further training in communications and documentation with La Touche, this will be followed up with your reporting manager

I sincerely hope that this now closes this matter.

CA-00052276-001 Penalisation under the Employment Equality Acts 1998-2018

It is the complainant's position that she has been victimised under the Employment Equality Acts claiming that she was discriminated against for "raising an issue with her employer about the sudden dismissal of a disabled volunteer" The respondent's position is that the complainant acted inappropriately and unprofessionally when she ignored the correct process and failed to raise "concerns" with her employer and instead

Section 74 of the Employment Equality Acts sets out victimisation as follows:

"victimisation" shall be construed in accordance with subsection (2).

(2) For the purposes of this part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith-

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act, or which was unlawful under any such repealed enactment,

(d) given notice of an intention to do anything within paragraphs (a) to (c).

The Irish Human Rights and Equality Commission has simplified this definition and stated:

It is victimisation if an employee is dismissed or penalised in some other way if they have:

made a complaint of discrimination to the employer.

been involved in any discrimination proceedings.

helped a colleague to make a claim.

been penalised as a result of an unfair comparison with a colleague known as a 'comparator'

acted as a witness in legal discrimination proceedings.

taken a discrimination claim to court under the Acts; or

informed an employer that they intend to do any of the things mentioned in any of these points.

The position of the respondent is that the sanction of final written waring does not constitute victimisation as the complainant cannot show that the alleged penalisation occurred wholly or mainly by the complaint for having committed one the acts described above. It is our submission that none of acts as outlined apply in the current situation.

Thecomplainant did notseek redress under part(a)did notoppose by lawful means an unlawful asoutlined inss. (b)orgivenevidence(c)orgiven noticetodoanythingasin(d),thecomplainant did notcommit oneoftheactsdescribed to.

Therefore, we submit that no victimisation under the act could have occurred. The complainant has outlined in their submission, that it is her belief that she was victimised for raising concerns with her manager Laura Ryan. Yet has admitted in the investigation and disciplinary process that she didn't raise the matter with her manager, No complaint was received by the respondent. Neither did she help an employee make a claim, or be involved in proceedings, either as a witness or otherwise. The act does not apply to the complainant.

The complainant in this case sent inaccurate and insensitive allegations that her employer has acted discriminatorily to a colleague. These unfounded and untrue allegations had the effect of causing significant upset to the colleague. The investigation and disciplinary process found the complainant and acted in an unprofessional manner. The complainant behaviour warranted investigation.

It is our position that an employer and in this case the respondent has the right to investigate instances if wrongdoing on the part of their employees. When they choose to do so there is a process to be followed to ensure fairness to all parties involved.

This matter was referred, and it was decided that it warranted investigation. The complainant during the investigation process was afforded the right to be represented, given a copy of the witness statements, and given the opportunity to respond, had the matter properly and fairly considered and a comprehensive investigation report ,was issued.

The matter was then considered for disciplinary by another member of staff the complainant was afforded the right of appeal, best practice was followed at all times and the actions of the complainant amounted to gross misconduct.

It cannot be said that the actions of the respondent whereby an investigation was initiated, and disciplinary sanction applied constitute victimisation as outlined in section 74 of the Employment equality Act.

Evidence of Lorna Ryan

Ms. Ryan gave her evidence on affirmation at the re-convened hearing.

She stated that she is the Head of Operations Support and is in charge of the main operational functions of the respondent. The complainant reports to her.

Regarding the conversation on August 8th (or 7th) the witness said that she had been asked by her manager to have a conversation with the complainant about moving NT from the coffee shop on grounds of health and safety.

The basis for the health and safety concerns was that footfall in the coffee shop had increased and there was an increased risk of non-compliance with food safety and health and safety requirements.

The witness said that she contacted the complainant and discussed various options with her as to how the volunteer might be redeployed elsewhere.

She outlined the specific health and safety concerns and said that the complainant did not question this. Specific options were discussed with the complainant including one location which the complainant said had been tried before but did not work.

A number of other options were considered also.

At that point the witness asked the complainant to speak to the volunteer’s father.

In response to questions from the adjudicator the witness confirmed that the complainant raised no issues with her regarding any unfairness or discriminatory element in the proposed move. Indeed, the witness said that the complainant actively engaged with her in considering options for the volunteer and in the witness’s opinion the complainant fully understood the reasons for the proposed move.

That concluded her evidence.

The mere application of a warranted disciplinary sanction is not victimisation as it does not result wholly or mainly from the complainant having to seek redress under the act; lawfully opposed an act, give evidence, or give notice of intention to the above. The disciplinary action taken against the complainant was genuine, and warranted.

The complainant when faced with a situation in work choose not to engage properly and professionally with her employer, she chose not to question the manager or escalate the matter another manager through the grievance procedure but instead makes the decision to send an inflammatory and critically factually incorrect text message making unfounded and spurious accusations.

The complainant is not protected by section 74 as it does not apply, however if section 74 does apply the reason for the investigation and disciplina1y process was wholly or mainly to correct the inappropriate behaviour of the complainant and to correct such behaviour.

The complainant could not have been victimised as the sanction applied was due to the nature and manner of her actions on a particular day in relation to the incident. She failed to raise issues or concerns with her line manager, or any senior member of the team with the respondent, and choose to send inflammatory and incorrect information to a fellow employee, causing great distress and upset.

The complainant was not victimised within the meaning of the Employment Equality Act, and the complainant has not been penalised.

CA-00052276-002

Discrimination under the Employment Equality Acts 1998-2018It is respondent submission that the complainant's position that she has been discriminated against by simply knowing an individual with a disability is entirely without merit.

The complainant only interacted with the volunteer at work, and on behalf of the respondent. The volunteer was part of the respondent's volunteer programme and was working for the respondent. Further we submit that the complainant has not been treated less favourably.

Employment Equality Act

The claim under the Employment Equality Act is that the complainant has been discriminated against by the respondent on the grounds of Disability ; specifically, the complainant is alleging discriminatory treatment in relation to her association with a person with a disability. It is our position that the complainant has not been discriminated against in any form by association or otherwise.

Burden of Proof

1. Section 85A (I) of the Acts provides as follows:

"(l) where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary".

In order to demonstrate that the Claimant has received less favourable treatment, and that the less favourable treatment arose from her age, gender, civil status, religion and/or race, the Claimant must first establish a prima facie case of discrimination. Prima facie evidence has been held in the Labour Court in the Rotunda Hospital v Gleeson [DDE003/2000] to be:

"Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred."

The Respondent notes that this requires that a complainant has to not only establish the primary facts upon which he or she will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA21/2008, the Labour Court recommended that:

"The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Cou1t to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain in particular fact or a set of facts which are proved in evidence. 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".

In Melbury Developments Ltd v Valpeters [2010] ELR 64 the Labour Court warned that "mere speculation or asse1tions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn".

In this case it is clear that the complainant cannot show beyond mere speculation or her own unfounded assertions that any discrimination has occurred. The complainant acted inappropriately. The subsequent investigation and disciplinary process was a direct result of the complainants' actions and behaviour. The complainant cannot give any evidence that the action taken, was as a result of the association with a person with a disability.

In addition, the complainant cannot show that in any way she has been treated less favourably than another would have been treated in a comparable situation. The complainant was treated fairly and justly by the respondent and as any employee would have been treated in a comparable situation. The respondent on foot of concerns with the complainants' actions did as any reasonable employer would do, and initiated an investigation to make a finding of facts. This treatment is in line with policy and the same as any employer is expected to do.

Following the investigation, the disciplinary process was followed, and a proportionate sanction was issued; the matter was then appealed. At all times the complainant has been treated as any other employee would have been in the same situation.

Discrimination byassociation happens when a person is treatedless favourably simply because theyare associatedwith or connected toanother person whocomes underthe nine grounds.

The complainant is attempting to make an acquaintance at work who has a disability the founding of her complaint for discrimination.

CA-00052276-003

Protected Disclosures Act 2014

Thecomplainantisclaimingthatshehasbeenpenalised formakinga protected disclosure.

Firstly, and again, it is the position of the respondent that no penalisation can occur in the exercise of a fair and reasonable investigation and disciplinary process. Secondly it is our position that the complainant could not have made a protected disclosure as she simply made bare allegations, and no disclosure of "information" was made.

In the English decision, Everett Financial Management Ltd v Murrell EAT/552/02, EAT/ 553/02, EAT/952/02, 18 December 2002 The disclosure must be a disclosure of "information and not merely a bare allegation or an expression of concern. The respondent was employed as an equities dealer by the appellant.

Heclaimed that he had been constructivelydismissed by reason of his having made a protected disclosure. He asserted that he had made a protected disclosure in 2000 when he and eighteen of his colleagues became concerned about a particular practice thatthey wererequiredtocarry outandsigned a petitionseekingassurances fromthe appellant's directors that they were notengagedinanactivity that was unlawful orthatcould beconstruedasunlawful.

The ET concluded, by a majority, that the signing of the petition was a protected disclosure within s.43B of the 1996 Act. The minority member's view had been that the petition was not a protected disclosure because it did not specifically name or identify a practice which could be identified as making a disclosure for the purposes of the 1996 Act.

It is the position of the respondent that the allegations of the complainant were nothing more than misguided speculation and not a protected disclosure.

Section 6 of the Act sets out:

6. (1) A disclosure is made in the manner specified in this section if the worker makes it-

(a) to the worker's employer, or

(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly-

(i) to the conduct of a person other than the worker's employer, or

(ii) to something for which a person other than the worker's employer has legal responsibility,

to that other person.

(2) A worker who, in accordance with a procedure the use of which by the worker is authorised by the worker's employer, makes a disclosure to a person other than the employer is to be treated for the purposes of this Act as making the disclosure to the employer.

The complainant inthiscase has not madea disclosure because she hasn't madethedisclosure to eitherheremployeroranyother prescribedpersonundertheact.

Infact,thatisthecurrentcrux of the whole issue. Had the complainant followed any protocol there would be no issue. The complainantwasbyherownadmissionissueshehadwithaninstruction.

The complainant did not seek clarification or report it to HR or Health and Safety, or to any other manager or senior member of staff, but instead, caused upset and distress to staff and managers when she choose to make unfounded allegations of discrimination.

The complainant has claimed that she has been "penalised withing themeaning of the protected disclosures act, by the suspension, the imposition of a disciplinary penalty, unfair treatment, injurydamageorloss,andthreatofreprisal.

The position of the respondent is that no protected disclosure has been made; Further it is our position that the disciplinary sanction imposed on the complainant was not for having made a protected disclosure it was for unprofessional behaviour when instead of raising concerns appropriately she sent inappropriate text messages.

Findings and Conclusions:

The case was initially heard on July 12th, 2023 and adjourned with the specific agreement of all parties for two reasons; to enable evidence to be heard from a specific witness who was not in attendance on the day, and to permit the complainant to make a submission on the law related to associative discrimination.

In the event, when the case was re-listed for a hearing, correspondence was received from the solicitor for the complainant, an extract from which follows.

‘Thiscasewaspart-heardbyMr.PatBrady,AdjudicatingOfficer(“theAO”)onthe12thJuly2023 (“the First Hearing”).

Thematterhasbeenre-listedforaseconddayonthe31stOctober2023(“theRenewedHearing”). AttheFirstHearing,theRespondent eitherfailed,refusedorneglectedtoproducetheirwitnesses. TheClaimant attendedthehearing withherlegal representativeand witness,atnotinconsiderable cost to her. The AO heard extensive legal and factual submissions from both sets of legal representatives.

Thatmatterhasnowbeenre-listed,however,weareatalosstounderstandforthepurposeofthe Renewed Hearing.

TheClaimantandherwitnessattendedattheFirstHearingandwereavailabletogivetheirdirect evidence and to be cross-examined. The AO declined on the day to hear that evidence. The Respondent failed to present any evidence or bring any witness in support of its position.

TheRenewedHearing,willundoubtedlyresultinunnecessaryadditionalstressfortheClaimant, who is already suffering with fragile mental health. It will also result in obvious additional financial cost not to mention further delays in the process. Unlike the Respondent, the Claimant does not have the means to finance her claim indefinitely and arrived fully prepared for her case at the First Hearing with her witness present. The Claimant presented her case on that day, both through her representatives oral legal submissions and supporting written submissions and documentation.

Therefore, the Claimant instructs us to inform you that she will not be in attendance at the Renewed Hearing on the 31st October, nor will our office be attendance on her behalf. The case is in the hands of the AO to make his decision and we respectfully submit that he takes all of our submissions, both oral and written, into consideration in determining the matter.

WeawaittheAO’sdecisioninrelationtothematterinduecourse.’

The complainant was then reminded in writing of the basis on which the first hearing had been adjourned and that it had been adjourned with her agreement) and advised that the resumed hearing would proceed.

However, her solicitor insisted that there would be no attendance on the basis that the complainant

‘is satisfied that her case is before the Adjudicating Officer both in written and oral form,’ and that it was ‘open to the Respondent to call whatever evidence they see fit and for the AO to make a determination based on the evidence and submissions which are before him.’

Accordingly, the resumed hearing proceeded on October 31st, 2023, in the absence of the complainant or her legal representatives, having been put on written notice that it would be. That resumed session heard the sworn evidence of Ms. Laura Ryan and the respondent‘s final summation.

In preparing my decision I have fully reviewed and considered all written and oral submissions of the parties over both hearings.

The narrative giving rise to the complaints is set out in detail above.

In summary, the respondent took a decision for reasons related to health and safety risk management to end the assignment of a volunteer in its coffee shop. The complainant, who had a responsibility for volunteers was advised of this and had a discussion about it with Lorna Ryan, whose evidence is above and will be considered shortly.

The complainant then contacted the father of the volunteer, also an employee of the respondent and communicated the decision that his daughter would no longer be assigned to the coffee shop. It is the respondent’s position that the complainant did so in terms that grounded disciplinary action, which then followed.

The complainant’s case is that, by virtue of her association with the volunteer, the respondent’s actions represented discrimination against her based on the principle of ‘associative discrimination.’ She further submits that her conversation with the volunteer’s father was a protected disclosure of wrongdoing (an act of discrimination against the volunteer). Therefore, she argues that the action taken against her by the respondent constitutes penalisation under both the Equality and Protected Disclosures legislation.

The case therefore turns on these points. Can the complainant rely on her association with the complainant to bring her within the ambit of the Act for the purposes of making a complaint?

Secondly, can her interaction with the volunteer’s father be considered a Protected Disclosure?

If the answer to both these questions is no, then it follows that the actions of the respondent in initiating disciplinary action cannot constitute penalisation.

In any event, the respondent submits that the disciplinary action was warranted on the merits of the case, i.e., that the complainant’s actions represented a level of misconduct sufficient to justify a disciplinary response.

The criteria necessary to meet an allegation of penalisation/victimisation are set out above in the respondent’s submission. For convenience they are as follows.

Section 74 of the Employment Equality Acts sets out victimisation as follows:

"victimisation" shall be construed in accordance with subsection (2).

(3) For the purposes of this part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith-

(b) opposed by lawful means an act which is unlawful under this Act, or which was unlawful under any such repealed enactment,

(d) given notice of an intention to do anything within paragraphs (a) to (c).

The relevant elements here for the purposes of adjudicating on the complaints of penalisation under the Equality Act are that the victimisation was ‘solely or mainly’ for having opposed a discriminatory act.

Based on the submissions, the alleged discriminatory act was the decision to move the volunteer from the coffee shop. The complainant persisted with her assertion that the volunteer, NT was to be dismissed altogether but that is contradicted by both oral evidence which in turn is partly supported by her own correspondence in which her knowledge of the health and safety issue is confirmed.

The starting point therefore is the conversation between the complainant and Ms. Lorna Ryan on August 6th, 2022. The complainant accepts in her submissions that she was told that the volunteer was being moved for health and safety reasons.

Ms. Ryan in her sworn evidence at the second hearing confirms this. She gave a description of a business like and amicable discussion with the complainant about how the volunteer might be accommodated. There was no suggestion in this of an attempt to remove NT from the respondent’s services altogether, simply a question of finding a more suitable location for her, if possible.

While the complainant’s submission suggests that there was no basis for the respondent’s health and safety concerns, (on the grounds that NT had worked there without incident for some months) no sound reasons have been adduced to suggest that the respondent’s decision was not made in good faith. For the purposes of this decision, I find that it was. (It would not be a good approach to risk management to say, as the complainant appears to, that as nothing has gone wrong in the previous four months, everything should be left as it is.)

The complainant was asked to communicate this news to NT’s father and did so in the following two text messages.

"Hi Declan. Will you call up to me in the morning pls? I'm not happy with this situation at all. I feel its discriminatory. Maura should have highlighted this health and safety thing in the beginning. It was her call to assign Niamh to the coffee shop. She should have got her haccp trained then."

It was this message that triggered the disciplinary action.

The complainant was clearly aggrieved that she was denied a greater role in this decision and her dissatisfaction on this score may have been the most significant influence in how she approached NT’s father. But there was no evidence that, in taking its decision the respondent acted improperly in relation to the complainant. The level of consultation was in keeping with her role.

Even if it was not, her next actions were ill-judged and disproportionate.

The text of the messages re-produced above displays a serious error of judgement on the part of the complainant and they were quite irresponsible having regard to the understandable emotions involved. They were a direct challenge to a legitimate concern by the respondent and its response to those concerns.

The correct avenue for the expression of any disagreement was through her line management system, and not to the father of the volunteer.

In the circumstances, the triggering of disciplinary action was justified and was then conducted to the requisite standard of fairness (although I have some reservations about whether a charge of gross misconduct was warranted on these facts, but I defer to the respondent on that point, especially as the sanction was considerably more lenient than might normally accompany such a finding).

I find therefore that the disciplinary action was entirely attributable to these actions on the part of the complainant and nothing on the facts of the case or in relation to the conduct of the process requires any departure from the established principles governing when a WRC Adjudicator may intervene to correct unreasonableness at the level of the workplace.

For the sake of completeness, I wish to address the claim of associative discrimination. This is the legal term that applies when someone is treated detrimentally because someone with whom they are associated has a protected characteristic.

While not specifically covered by the Employment Equality Acts, its essential principle is that it is not lawful to discriminate against a person because of their proximity to (or association with) a person covered by one of the protected characteristics.

For example, it would be unlawful to refuse to offer someone a promotion because they have a disabled child or because of their spouse’s religious beliefs. Other examples include less favourable treatment of a person with a gay partner or who has a partner or friend of a different race or nationality. It covers a friend, spouse, partner, parent, or anyone with whom they associate.

The Irish Human Rights and Equality Commission (IHREC) defines it as follows.

‘Discrimination by association happens when a person is treated less favourably simply because they are associated with or connected to another person who comes under the nine grounds.’

Two UK cases provide an illustration of the requirements, (discussed in ‘Associative Discrimination,’ Diarmuid Bunting B.L. (UK) St John’s Buildings, March 2017).

In Zarczynska v Levy [1978] IRLR 532, [1979] ICR 184, EAT the complainant was dismissed for serving a black customer, contrary to her employer's express instructions. The Employment Appeals Tribunal held that there was no racial discrimination because she was not sacked because of her own colour.

However, on the basis that it should give effect to the purposive intent of the legislature, the UKEAT decided that racial discrimination could include treating one less favourably on the grounds of another's colour.

In Showboat Entertainment Centre Ltd v Owens [1984] IRLR 7, [1984] ICR 65, EAT, a white employee was dismissed for refusing to carry out an instruction from his employers to exclude black youths from an entertainmentcentre.

That instruction was clearly unlawful under s.30 of the UK Race Relations Act 1976 (instruction to discriminate) but only the Commission for Racial Equality (as it was then) could take enforcement action in respect of that section (s.63 RRA).

The question was whether Owens could say that his dismissal was an unlawful act of discrimination against him, on the grounds that he had been treated less favourably on the grounds of another's colour, and it was held that he could by association.

See also the decision of the Labour Court in Henry Denny v Sinead Dolan EDA 1310 (2013) arising from the denial to the complainant of a bonus due to circumstances which arose from her having a child with a disability. Likewise, while the complainant did not succeed for other reasons in A Worker v Two Respondents EDA 1129 (2011) he had been refused employment on grounds related to his wife’s disability.

It is therefore possible to discern two elements in associative discrimination.

First, it requires an actual act of alleged discrimination; an act of less favourable treatment of some sort (e.g., a sanction, a denial of employment or an employment related benefit, a refusal of service or admission) but critically, it must impact on the person directly who is making the complaint, as in the examples above.

In this case the complainant fails both these tests.

No act of discrimination has been alleged which had any adverse consequences for the complainant, apart from her feelings of exclusion from the decision to transfer NT.

She experienced no detriment on account of the proposed transfer, and the complaint is therefore, fundamentally misconceived in law. In any event I find that the proposed actions in respect of NT were not a breach of the Act, and, for good measure that the complainant was aware of this on the basis of her conversation with Ms. Ryan. This was sufficient to ground the disciplinary action by the respondent.

Looking at the case law, it is not sufficient that a person take umbrage, for example at the treatment of another, or feel aggrieved on their behalf, even though no detriment has been visited on them directly or even indirectly. There is no legal basis, in other words, for a third-party complaint.

The complaint that a protected disclosure was made fares no better on these facts.

The purported disclosure was made to the father of the volunteer and, as has been set out above was little more than the complainant’s opinion, despite being in possession of facts to the contrary, that NT might become the victim of a breach of the law.

I find therefore that this does not meet the requirements set out in Section 5.1 of the Act and this complaint fails.

Accordingly, and for the reasons set out above, none of the complaints are well founded.

In summary, there was no breach of the Employment Equality Acts in respect of the complainant, and that complaint is not well founded. She did not make a Protected Disclosure as required by that Act, and therefore the disciplinary action cannot be connected in any way, let alone ‘solely or mainly’ to those actions.

They were clearly a direct consequence of the manner in which the complainant acted in her interaction with the father of NT.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

For the reasons set out above, complaints CA-00052276-001, CA-00052276-002, CA-00052276-003 are not well-founded.

Dated: 22nd November 2023