Complainant

Respondent

Parties

Claire  Barnes

Health Service Executive

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

 Joan Troy, Employee Relations

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055256-001

23/02/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness undertook to give their evidence under cross examination.  The respondent was offered the opportunity to cross examine the complainant but did not do so.

Although the complainant sought to anonymise the decision after the conclusion of the hearing, she did not provide any detailed reasons as why anonymisation should be granted.  Having regard to the foregoing, I am not satisfied that the principle of open justice should be varied in relation to this complaint.

The complainant submitted that she was discriminated against on the age ground. Her appeal regarding the Special Pandemic Recognition Award was disallowed by her employer and she sought the specific grounds as to why her appeal was refused. The complainant submitted that all of her colleagues the same grade the same job same department and working under the same circumstances were awarded the payment and noted that she was the only staff member that had been refused.

The complainant submitted that she sought reasons for the refusal from her employer and they stated that the appeal is final and binding.

In her testimony, the complainant said that she was required to work in the office during the COVID-19 pandemic and that people in her section weren't allowed to work from home like everybody else. She was required to work in person for the duration of the Covid Pandemic.  She noted that everybody else who worked for the duration received the payment in her section and that she was 10 years younger than everybody else. She was never given reasons why it was refused.

The complainant stated that she never received written reasons as to why her initial application was refused and that the appeal application did not give detail as to why she was refused this payment. She outlined how her line manager verbally told her that her initial application was refused.

The additional witness for the complainant stated that she believed that the complainant’s service during the Covid 19 pandemic should be acknowledged.

The respondent submitted that in January of 2022 the government directed the Department of Health to provide special additional financial recognition to those eligible frontline health care workers based on the particular additional risks they faced in the performance of their normal duties during the pandemic.  The respondent submitted that employees who worked between one March 2020 and 30th June 2021 who worked in an environment which warranted their inclusion in sequence Group 1 and two for the vaccination programme would qualify. The FAQ document enclosed with the circular governing this award gave additional risks set out in the vaccination sequence groups.

The respondents admitted that her complaint relates specifically to an appeal regarding the special pandemic Recognition Award. It was submitted that she was issued with correspondence from the dispute resolution committee advising that her appeal was tonight as the grounds of appeal did not meet the criteria for payment of the pandemic special recognition payment. She was also advised as per the agreement between the employer and trade unions the committee's decision is final and binding.

The respondent refutes that her appeal was treated in any way at odds with or discriminated or treated any differently under the employment Equality Act to any other appeal that was dealt with. The employer submitted that it is satisfied that it is acted in accordance with the terms of reference regarding the dispute resolution committee which were agreed with all trade unions and refutes any suggestion to the contrary. The employer sort a dismissal of the claim.

There were no witnesses for the respondent.

The complainant submitted that she was the only person in her section who did not receive the Special Pandemic Recognition Award and that she was 10 years younger than everybody else in her section. This was not contested by the respondent.  On the basis of the foregoing, I am satisfied that the complainant has established facts from which it may be inferred that discrimination has taken place in accordance with the Act. 

Section 85A of the Act outlines the following:

85A.—(1) 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.

Accordingly, the burden of proof now falls upon the respond and to refute the allegation of discrimination.

The respondent submitted that the complainant did not provide enough detail when appealing the original decision to deny her the special recognition award. The complainant stated that she was given the decision verbally and although the respondent submitted that this was not the case, no document was submitted outlining the written decisions that were given to the complainant and no witness testimony was put forward to contradict the complainant's version of events.

Nonetheless, according to the respondent the rationale for not granting the appeal was rooted in the Circular issued to all staff.  That Circular includes the following paragraph:

Do the employee / trainees have to make an application? 1. Eligible Employees working throughout the period in scope: No application is required in this instance. Service managers, at site location level, must identify and verify the staff within scope to their own payroll departments, via the normal channels, as a net payment, utilising the short-term payments process, normally used. The Wage Type to be used is 2198. Upon acceptance of the payment, the employee confirms their agreement to the full terms and conditions that apply.

The foregoing seems to support the complainant’s version of events.  Although it was noted that not all of the complainant’s older colleagues received the payment, the majority did.  On the basis of the foregoing, where the original identification of staff members was not by way of written application, I find that the respondent has not established facts from which it may be established that discrimination was not a factor in the original decision and therefore, this may also have tainted the appeal decision, albeit unwittingly.

Having considered the written and oral submissions in relation to this complaint, I find that the complaint is well founded, and that the respondent has not established otherwise.  In the circumstances, I consider that an award of compensation equivalent to the Special Pandemic Recognition Award is appropriate, and I award the complainant compensation of €1000 which I consider just and equitable in the circumstances.

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is well founded and I award the complainant €1000 in compensation.

Employment Equality Act – prima facie complaint – well founded – award of compensation