Complainant

Respondent

 Parties

anonymised

Health Service Executive

Representatives

  self

 Mr David Beegan HR Manager

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-00056444-001

01/05/2023

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

CA-00056444-002

01/05/2023

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

CA-00056444-003

01/05/2023

The factual matrix of this case relates to a job evaluation process that the Complainant perceives to be discriminatory. Other colleagues have had their roles upgraded. The Complainant stated that she is being left in her current role because it is a difficult role to fill.

The basis of the alleged discrimination relates to a long delay by her manager in signing the evaluation form.

The Complainant is a lay litigant and based on her research of relevant case law and the statutory code relevant to this act (S.I. No. 208 of 2012) alleges that discrimination has occurred arising from her gender, family status and also alleging harassment.

In her written submission and summary dated 25th October 2023 the following incidents of alleged discrimination are detailed:

15. Section 77 (a) discriminated by another in contravention of this Act (b) not to be receiving remuneration in accordance with an equal remuneration term

16. Less favourable treatment as per comparator who received evaluation sign off and subsequent separate promotions (2012 group - comparator example) for officers SG & LN Spring 2023.

17. This occurred in March 2023, with refusal by line management redacted grade VI and

HR officer grade VII redacted, to sign evaluation request to initiate the first step of the

process. No signature was forthcoming from redacted, HR redacted designated

by email line manager redacted. Redacted further designated as line manager

responsible for signature after complaint submission on the 21/06/23 @ 16.58 - “If you wish to make these adjustments please return to me so that I arrange to progress this application”

– establishing this evaluation application of March 23 as referral date of complaint ADJ00045872 to the WRC, as the most recent incident of discriminatory treatment.

18. Evaluation with changes since submitted for signature.

19. This act of less favourable treatment follows harassment specific to protected grounds of same

Equality legislation - 1. Family 2. Gender

20. These acts occurred on dates listed as follows.

21. 14.03.22 & 18.08.22 Pre-Procedure Disciplinary

22. 07-08.12.21 - Refusal of Force Majeure/Weather/Given to other officers (Since given 1 day force

majeure leave)

23. 06.12.19 – Comments by redacted Re: my husband’s 2019 Christmas work schedule

24. 27.08.19 – Comments by redacted at Dignity at Work meeting for prior harassment

25. 12.06.19 – Comments by redacted upon leaving office 4pm regarding my daughter

26. 04.04.19 – Email received from redacted owed 288 hours since 2013

27. 16.04.19 – Email received from redacted I owed 288 hours since 2013

28. 17.04.19 – Email received after submission of contract stating I didn’t owe the hours

29. 06.03.19 – Called to office by redacted requested to sign data breach verbally threatened through shouting when I refused. Told by email not to bring the referencing documentation to the

meeting, couldn’t sign therefore.

30. 07.12.18 - Door kicked in, threats more to come, when working alone in Acorn Office, no phone, isolated office, Porter redacted taunting by redacted present also.

31. 10-14.12.18 – Threats to beat up my husband by redacted staff kitchen Community Services.

32. 19.12.18 - Called to HR Manager’s office, told not to place complaint of same.

33. I have been further discriminated against as per Section 77 of the Employment Equality Act, 1998

(b) not to be receiving remuneration in accordance with an equal remuneration term on dates as per submitted by comparator example list.

34. Comparator list can’t be explained through current market industrial competition, the comparators were each from the original 2012 officer group

35. 2017 – NRS04876 IV Staff officer – Application to apply not forwarded to me

36. 2018 – HBS06849 VII Staff Officer Internal Audit - Not shortlisted

37. 26.04.19 Grade V Staff Officer - Not Shortlisted

38. 08.12.20 Grade VI Staff Officer - Not Shortlisted

39. 02.08.23 Grade V Staff Officer - Not Shortlisted

40. Aug 22 & March 23 Application for evaluation Not Signed

The Complainant referred to the following:

Section 82 Subsection 1. Employment Equality Act, compensation for the acts of - (C) Redress

for acts of discrimination or victimisation which occurred not earlier than 6 years before the date of referral. For discussion at hearing.

The matters before the tribunal relate to grievance essentially about a recruitment process and competitions. Those competitions are independently conducted. The recommendations are based on a panel determining who they determine who is best to fill a role. The Complainant is aggrieved that other colleagues have been promoted and she has not. However, no case has been made out to ground her complaints as required under the Act.

Grounds:

Section 6(2) states that:

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different [civil status] (in this Act referred to as “the civil status] ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

The Complainant who is a woman and also has family status which means:

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

Harassment:

The Complainant was asked to attend a meeting with management about the content of an email communication that was deemed not be to keeping with guidelines. These meetings are described as pre-disciplinary meetings. These meeting occurred on the 14th of March 2022 and on the 18th of August 2022. The Complaint form was lodged with the Commission on 1st of May 2023. The Act provides for the following at section 77:

(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the [Director General of the Workplace Relations Commission] or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

I determine on the facts that the matter complained of is out of time.

Harassment is defined at section 14A to be:

(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

The Complainant may have found that being asked to attend such a meeting to be difficult and that the allegations made against her were unfounded. However, she has not linked this event to a ground of discrimination being relied upon which is gender and family status.

Also, the language of the Act states that the purpose of the alleged harassment or effect was a violation of a person’s dignity.

In the Arthur Cox Yearbook 2017 at 6.04 a relevant analysis concerning disciplinary procedures as a tool of punishment or bullying is detailed with reference to the leading case in this area which is Ruffley v The Board of Management of Saint Anne’s School [2017] IESC:

O’Donnell J considered the issue of ‘dignity at work’ to be perhaps the most important aspect of the definition, and considered it insufficient to simply assume the undermining of the individual’s dignity as an outcome of repeated and inappropriate behaviour, as opposed to a distinct component of bullying:

In my view, the manner in which the plaintiff’s argument approaches this limb of the test drains it of much of its meaning. The conduct is said to be repeated because more than one event is relied upon. It is inappropriate because it is in breach of fair procedures, and accordingly, it must be undermining of dignity at work ...In my view for the reasons already set out, it seems to me that the requirement of conduct undermining dignity at work is a separate, distinct and important component of the definition of bullying which identifies the interests sought to be protected by the law, and just as importantly limits the claims which may be made to those which can be described as outrageous, unacceptable, and exceeding all bounds tolerated by decent society.

The word dignity, carries a considerable charge with a distinct moral component. ... The denial of fair procedures is never a trivial matter but I do not think it can be comfortably said in this case, to be undermining of human dignity, particularly when it is the same breach of procedures which is also contended to be inappropriate. More importantly I consider that the requirement that the procedure be repeated inappropriate and undermining of dignity is a test which uses language deliberately intended to indicate that the conduct which will breach it is both severe and normally offensive at a human level.

I accept that the “singling out” or “targeting” of an individual for disciplinary purposes is capable of being a component of bullying. However, the use of the verb in these formulations is important. It is not enough in my view that after the fact it is possible to say that a person has objectively been treated differently and worse than others in a similar situation, even if that in certain circumstances may give rise to a different claim. I accept for example as set out at paragraph 43 above that in the context of dismissal proceedings, an apparent deviation from prior practice may itself be evidence of unfairness. But in many cases in which it can be said a person has been ‘targeted’ or ‘singled out’ for disciplinary sanction and which constitutes at least part of a finding of bullying, the fact of a general practice will have been known to the superior prior to the initiation of any disciplinary process, and in such circumstances may give rise to the inference that the disciplinary proceedings are not being pursued bona fide because of a concern about the practice or behaviour, but rather as a form of punishing and perhaps humiliating the individual concerned.

In my view that is not what occurred here.

The fact that the Complainant attended such pre-disciplinary hearings and found them to be difficult does not meet the objective test that the purpose was to violate her dignity.

Prima Facie Case:

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

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

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

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

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

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

The fact that the complaint is a woman and has family status is not sufficient to ground her complaint in the absence of establishing some facts that tend to demonstrate that arising from being a woman and/or having family status a causal link exists with her alleged unfavourable treatment and the ground being relied upon.

The Complainant has made out no case to ground her complaint that arising from her Family Status she was discriminated against.

The Complainant has made out no case to ground her complaint on the gender ground.

The proposition that she is a woman and also that she has family status and arising from this fact she was discriminated against as demonstrated by her failure to be promoted does not establish a causal link between the ground and the unfavourable treatment. The fact she was not successful and is a woman does not establish a prima facie case. The fact that she has family status and has not been successful does not establish a prima facie case.

The Complainant has listed many other colleagues, male and female and also who have family status who have been promoted based on being evaluated as holding a job of greater responsibility. There is no evidence of any discrimination relating to such promotions.

The basis of this referral is a deep sense of injustice about being passed over for promotion and also not being evaluated positively for an upgrade. It would appear on the facts that this is a worker’s dispute and grievance rather than a case grounded on the requirements of the Employment Equality Act 1998.

Ongoing and Continuing Discrimination:

The Labour Court in Hurley v County Cork VEC (EDA1124) said that occurrences outside the time limit could only be considered if the last act relied upon was within the time limits and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum. The case of the Department of Justice Equality and Law Reform v A Worker(EDA1422), which involved a complaint of alleged discrimination by a prospective employer and the Labour Court determined that the complainant had failed to prove a continuum of discrimination between historic alleged instances of discrimination outside of the six month referral period, and the alleged acts that the Court considered "in time" stating that the complainant failed to "establish a sufficient connection between the competitions such that would support her contention that they should be viewed as anything other than a series of independent unconnected competitions". The incidents detailed in this referral are separate and discrete other than:

40. Aug 22 & March 23 Application for evaluation Not Signed

These two events are potentially linked; however, they do not constitute a ground of discrimination or harassment as there is no causal link between the grounds being relied upon and the alleged unfavourable treatment.

I have noted an event that occurred after the date on the complaint form that is listed in a summary document presented at the hearing. I don’t find that the Complainant has demonstrated that this is an incident of continuing discrimination as no prima facie case has been made out by the complainant to show that unfavourable treatment was linked to her gender and family status.

39. 02.08.23 Grade V Staff Officer - Not Shortlisted

CA-00056444-001 Gender

I find that the Complainant has not made out a prima facie case of discrimination on the ground of gender. The Complainant was not discriminated against on the ground of gender, and I dismiss the complaint.

CA-00056444-002 Family Status

I find that the Complainant has not made out a prima facie case of discrimination on the ground of family status. The Complainant was not discriminated against on the ground of family status, and I dismiss the complaint.

CA-00056444-003 Harassment

I find that the Complainant has not made out a prima facie case of harassment that was related to a ground as provided for in the Act. The Complainant was not harassed for a ground provided for under the Act and I dismiss the complaint.

For these reasons I determine that the Complainant was not discriminated against by the Respondent and dismiss all complaints being brought by the Complainant against the Respondent.

Family Status-Gender-Harassment