Complainant

Respondent

Anonymised Parties

A Complainant

The Trustees of a Mental Health Charity

Representatives

  In person

Anthony Slein BL instructed by Fiona Gallagher Rochford Gallagher & Co. Solicitors LLP

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-00053216-001

11/10/2022

This is a complaint brought under the Employment Equality Acts 1998-2015 in which the Complainant alleges that, as a prospective employee, he was discriminated against by the Respondent in terms of his access to employment. 

A managerial position (Operations and Development Manager) that it was agreed he would be appointed to, was withdrawn by the Respondent on the basis that he had an imputed (and unproven) mental health disability. This initial discriminatory treatment was followed by a reduced job description being discussed, but not offered to him.

He also complains that after he made a disability discrimination complaint, via an ES1 form, he was victimized by the Respondent.

The Respondent defends this complaint in full. The Respondent raises a preliminary jurisdictional application that the incorrect Respondent has been sued and alternatively argues that the substantive complaint is fully disputed. 

An application has also been made by the Respondent that the WRC decision should identify of the parties,  which the Complainant objects to.

The Complainant

Preliminary Applications

1.       At the outset of the Adjudication hearing the Complainant applied to amend his complaint form to change the Respondent’s name from, its trading name, to the trustees of the Charity.

2.       In response to the Respondent’s application -  to anonymise the parties in the published Adjudication decision -  the Complainant objected. He submitted that there were no special circumstances to justify anonymisation. He contended that the evidence showed mismanagement on behalf of the Charity, and that it was in the public interest that the Charity be identified.

-          .

Substantive Complaint

The Complainant gave evidence by way of affirmation as follows:

In 2019, the Complainant designed and set up a mental health project in a town in the west of Ireland, hereafter referred to as “the Project.”

The concept behind the Project was to provide wrap-around mental health services in a specially purposed café/centre which would be available to people on a 24 hour/7 days per week basis. The purpose was to create a physical space which people who were in mental health crisis could come to at any time and where those with mental health challenges would be welcome and receive support.

The Complainant worked on the feasibility of the Project in 2019 and 2020 (and received State funding for this.) He developed the Project more throughout 2021 without being paid. Significant progress was made over this time. The Complainant developed a plan and a strategy and on foot of this he succeeded in persuading the HSE to provide a building for the proposed centre. During this time the Complainant worked alongside, KR (HSE) a woman who worked in HSE mental health services, and who had known the Complainant since 2013.

As the project developed in mid to late 2021, the HSE advised the Complainant that to become operational, the Project would need to pair with an existing mental health charity to give experienced direction to the Project, to receive HSE funds and to assist the Complainant with governance/ charitable status issues.

The Complainant met with SB, founder and secretary of the Respondent, in November 2021. The Respondent is mental health charity (hereafter referred to either as the Respondent or “The Charity.”)

In December 2021, on behalf of the Charity board, SB and the Complainant agreed that the Respondent would partner with and help to carry the Project with the Complainant. Their purpose and aims were both similar and each recognised the benefits that mutual cooperation would bring.

It was also agreed at this time, that the Project would require the employment of an Operations and Development Manager (ODM.)  The ODM would deliver what was needed to open the centre and to bring the Project into operation. It was agreed between the Complainant, the Charity and the HSE that the Complainant would be appointed to this role because the Project had been developed by the Complainant, he knew every detail about it, he was experienced in business management and knew exactly how to get the centre up and running. No timeline was agreed for his appointment and no conditions were agreed to trigger his appointment, but it was agreed, that as soon as possible, the Complainant would be appointed to the role and that he would be an employee of the Charity until the centre opened. Once the centre opened, the Project would have acquired its own charitable status and would take over the operational reins, at which point the Charity would step aside. It was envisaged that the two charities would thereafter mutually cooperate on projects, although the Charity would no longer have any active role in the Project. Essentially the involvement of the Respondent was to facilitate the launch of the Project centre in autumn of 2022.

The Complainant was initially very positive about this partnership plan. The Charity had a high profile and long experience in the mental health charity field. Its participation would help in fund raising, getting the centre up and running but thereafter it would step back. The partnership ostensibly met the charitable requirement of the HSE and from a personal point of view, the Complainant looked forward to receiving assistance, support and job security from the Respondent.

The Charity appointed a steering committee to assist the Complainant (hereafter referred to as “the Committee.”)

After Christmas 2021 the Complainant continued to work intensely in January and February 2022 to prepare for the signing of a memorandum of understanding (MoU) between the HSE and the Charity to formalise what had been agreed. This was to be the legal foundation of the Project.  He expected that all going well that he would soon thereafter be appointed by the Respondent to ODM role, but before that could happen, the HSE’s due diligence requirements needed to be met.  

However, when the Complainant started the due diligence exercise, he discovered that many of the Charity’s own policies, safety statements and handbooks were not up to date. He informed SB of this and offered to update these on behalf of the Charity.

But as time progressed, he discovered other irregularities. For example, he found that some of the Charity board members were not registered with the Charities Regulator. He advised SB of this, because if unremedied, it would prevent the HSE from agreeing the MoU and the Project would be delayed. He was assured by SB that it would be sorted out. It was around this time that the Complainant began to suspect that despite all the experience the Respondent had in the mental health field, that the organisation might not be as well managed as he had previously believed.

While doing the additional work updating the Respondent’s policies, he continued working on the Project. This included getting the HSE building ready, getting building insurance, developing the gardens on the site, promoting the project, organising finance, developing fundraising plans, identifying potential grant aid and organising volunteer recruitment.  He did all this on the understanding that he would soon be appointed as the ODM and that he would soon be paid.

On 28 February 2022 the HSE signed a memorandum of understanding (MoU) with the Respondent.  SB signed it on behalf of the Charity Board. Prior to signing SB assured KR (HSE) that due diligence had been complied with and that all was in order from a Charity regulation point of view.  

It was only in June 2022 that the Complainant discovered that despite him warning SB in January to register the correct Board members with the Charity Regulator, this still had not been done when the MoU was signed in February 2022 and the HSE had been misinformed by SB. This ultimately led the HSE to declare in June 2022 that the MoU was null and void because of the misrepresentation and because the inaccuracy could not be remedied retrospectively.  This was not known to either the Complainant or the HSE in February. It only came to light when relations between the Complainant and the Charity had completely deteriorated.

After the MoU was signed on 28 February 2022 the Complainant continued to work long hours and in a way that was surprising to him, he encountered a lack of support from the Charity staff who were meant to be helping him with the Project. The Complainant had believed that once MoU was signed that he would start getting some assistance. The Complainant asked SB and other Charity staff for help, but no help was forthcoming. The response from SB and staff soon became defensive. He then found out that monies were being spent unwisely on the Project without his knowledge and yet at the same time, he was not being paid.

By April not only was he still not being paid but he had started incurring personal expenses for Project work. It had become entirely unprofessional.  Any directions that he gave to staff were ignored and decisions were made by SB without informing him.  It soon reached a point that he considered that rather than assisting him, the Charity had become an obstacle to the Project moving forward. Tasks were not done and valuable time was being lost. Requests made by the Complainant that specific tasks be done, for example asking SB to obtain insurance quotes or asking that she set up a separate bank account for Project funds were not acted upon and the fundraising that was urgently needed was not undertaken.

In the face of this inaction the Complainant decided himself to launch a fund raising campaign without any help from the Charity,  but then he was stopped by the HSE who informed him that all media contact needed to be first vetted by the HSE.

This was in late April 2022. At this point the Complainant decided that due to lack of support and mismanagement by the Charity that he was the only one who was doing any work and yet he was prevented from doing things. He decided that he needed to take a temporary break from the Project.

He advised the Charity by an email dated 28 April 2022 that he was taking time off from the Project. He stated that he “ could no longer absorb the uniquely damaging knocks and bangs the Project seems to be creating on an hourly basis.” He requested “time to replenish and repair.”

A few days later he was contacted by KR(HSE) who informed him that there was no one else who could run the project and that both she and the Charity Board wanted him to return to manage the Project.

The Complainant decided that rather than continue to the chaos of before, that if he was to return. things would need to change. He asked for feedback from the Charity Board the majority of which wanted to return. The Complainant’s view was that he would not return unless he received some  job security and that he be appointed as ODM. He also needed to know how work on the Project would be distributed going forward. This issue was discussed between KR(HSE) and members of the Committee.

It soon became clear that the person who did not want him to be appointed as ODM was SB, the founder and secretary of the Charity. It had been SB who the Complainant found to be most difficult to work with. He considered her to be incompetent, unmotivated, unhelpful to him, defensive and despite her apparent experience she had little or no understanding of charity governance rules.

Draft Letter of 12 May 2022

Around this time that SB sent KR(HSE) an email on 12 May 2022 – to which was attached a draft letter which SB intended to send to the Complainant.  The Complainant only became aware of this letter much later by way of a Freedom of Information search. The letter stated that she, SB had no desire to go back into a working relationship with the Complainant, at that time.

SB described the Complainant’s departure and conduct as erratic (“jarring communications… quitting without warning… no handover.”)  She stated her belief that the Complainant’s behaviour was due to him working intensely without reward for over three years but also because the Complainant was distressed by “past experiences” and that before he could return to work that he needed “to accept and forgive his behaviours that had led him to the distressed state.” She stated that the “period of drama has to end and stress and blame and anger has to end and it’s you that needs to do work on yourself.”

SB concluded by stating “I love everything I do and every mad fucker I meet, including yourself. But I currently have no desire to go back into a working relationship with you in your current distressed state.” She recommended that he take a break and return when he was more “refreshed with a stable foundation for the future.”

The Complainant contends that SB’s use of the expression “mad fucker” in relation to him was a discriminatory slur. It was a derogatory way of describing a person with mental health challenges, which SB had no basis to believe or say.  The Complainant also contends that this is prima facie evidence that the SB had decided that his access to employment to the role of ODM should be prevented or delayed because of the Complainant’s imputed (and unevidenced) mental health disability.

Meeting 18 May 2022

On 18 May 2022 the Complainant, SB, KR(HSE) and members of the Committee attended a meeting.  The purpose of the meeting was to discuss the terms that Complainant would return to the Project. The Complainant says that he explained the lack of support that he had encountered since the start and said he could not continue without being paid.

SB then spoke saying that he had left work on 28 April saying that he needed time “to replenish and repair” and that from her point of view, unless the Complainant got professional treatment for his mental health difficulties, she would not be supporting his appointment to the role of ODM.

The Complainant gave evidence that he was completely taken aback by this. The reason that he had said that he needed time to “replenish and repair” was because he was overworked unpaid. He had not received help or support from the Committee or from SB. For SB to suggest in an open forum that he had mental health problems which should prevent him from being employed was not only inaccurate (he had never been diagnosed with any mental health condition or got treatment for a mental health condition) but it was clearly discriminatory.

The Complainant gave evidence that he needed support not a medical diagnosis from a unqualified person that he had mental health problems.

The Complainant objected at the meeting and accused SB of being discriminatory. KR (HSE) asked SB to retract the statement, which she did but then said that she maintained her stance that before he could be employed the Complainant needed professional help. At this point the Complainant left the meeting.

The Complainant contends that this is prima facie evidence that his access to employment to the role of ODM was prevented or delayed because of the Complainant’s imputed mental health disability.

After the 18 May 2022 meeting

 From 19 May 2022 the Complainant returned to work on the assumption that despite what SB had said at the meeting (because she was only one of the Board) that in due course he would receive a contract of employment.

KR (HSE) was also of the view that this would happen and various emails crossed around this time about the job. But in these emails SB attempted to dilute the post, making it a fixed term 8 week and then 3 month contract and redistributing tasks to others, changing the job title (to “officer” instead of “manager”) and stating that all options be discussed with her before any decision was made.

On 23 May 2022 the Complainant served an ES1 form against SB on behalf of the Charity.  This set out a complaint which was that he had been discriminated and harassed on grounds of disability at the meeting on 18 May 2024.

A meeting of the Committee took place on 25 May 2022 and the Board voted in favour of giving him a contract.

The Complainant was told by KR(HSE) that on 2 June 2022 another meeting took place to which the Complainant was not invited where KR (HSE) met who she understood were Board members of the Respondent to discuss how best to proceed and what nature of contract should be provided to the Complainant.

The Complainant was told by KR(HSE) that at this meeting SB recommended that the Complainant be asked if he was agreeable to a three-month contract. KR (HSE) agreed to sound the Complainant out on this. KR (HSE) phoned the Complainant and he said that he was not agreeable to a three month only contract because that would only guarantee him employment him until the centre was opened in the autumn and after which his position would become insecure.

Over first two weeks of June a stalemate position developed where the Complainant had asked to meet with the Board to discuss his situation and SB’s stated view - that he should only receive a fixed term contract and that the tasks of the job should be spread out amongst a team – remained unchanged.  Ultimately no job offer was ever made to him and the Board did not meet him despite his many requests.

The Complainant contends that the fact that he was never given a job offer and the job offers that were discussed were limited and varied from what had previously been agreed is prima facie evidence that his access to employment to the role of ODM should be prevented or delayed because of the Complainant’s imputed mental health disability.

13 June 2022

By email dated 13 June 2022 the Complainant wrote to SB advising her that people who SB had told KR (HSE) on 28 February 2022 were registered Board members were not in fact Board members and the person who SB said was the registered Chair of the Board at that time, was not, was a serious misrepresentation. He advised SB that once the HSE was informed of this, the MoU between the Charity and the HSE would be nullified.

He outlined two options that he considered were open to the Charity. First, that the Charity inform the HSE of the irregularity, following which the Charity would lose the Project and the Charity would become reputationally damaged or secondly that the Complainant and SB meet and sort the matter out between them. The Complainant asked her to decide on or before 15 June 2022. The Complainant did not get a reply to this letter and on 16 June 2022 he informed KR(HSE) about the lack of governance.

On 16 June 2022 the Complainant was informed that SB was sent an email by the KR (HSE) advising that the MoU was null and void. KR (HSE) advised SB that the Charity was required to step away from the Project and that the Project would establish itself as a charity and would take over the reins of the project itself, earlier than planned.

On 23 June 2022 the Complainant received an ES2 form from the Respondent which set out that the reason that the Complainant was not appointed to the role of ODM was because there was insufficient funding to remunerate the position but that the Complainant could apply once fund-raising increased and the position becomes available.

The Complainant submitted that this was a disingenuous response to his ES1 form. Not only did the ES2 reply side-step the discrimination complaint, but if lack of funds had been the reason which prevented him being appointed that was not the explanation that was given by SB at the 18 May meeting. Furthermore, if funds were low this was because the Complainant efforts at fundraising had been hindered by all the other work he had to do.  If he had been employed as agreed, he could have properly engaged with the job of fund raising but because “the partnership” (in name only) had become a hinderance rather than a help and SB was now preventing him from being appointed (on the basis that he was apparently mentally ill) this prevented the Project work being done, including fund raising.

Victimisation Complaint

The Complainant alleges that he was victimised for alleging discrimination against by the Respondent by serving an ES1 form on SB on 23 May 2022.

The alleged victimisation was as follows:

(a) down grading the Operations and Development Manager post and after trying to prevent the appointment of the Complainant, SB then suggested at a meeting on 25 May 2022 that the post instead be a three-month contract only

(b) not inviting the Complainant to attend Committee and other meetings that he should have attended

(c) ignoring the content of the Complainant’s ES1 complaint in the ES 2 form

(d) Ignoring the Complainant’s requests to meet with the Board

(e) after the MoU was deemed null and void SB implied to the HSE that the Complainant had misappropriated funds, funds that she knew were accounted for.

(f) failing to properly hand over to the Project, failing to provide accounts of funds to the HSE or the Complainant, ultimately led to a decision by the HSE to pause the Project.

Under cross examination the Complainant said the following:

He rejected the Respondent’s assertion that the reason he was not offered a contract of employment was solely due to lack of funds or that the ODM annual salary of €35,000.00 was contingent on €160,000.00 first being raised.

He said that the ODM post was – from his and SB’s first conversation in late 2021 on – supposed to be his job. Indeed, SB’s draft letter on 12 May 2022 confirms this stating “and although the position is yours – there will be an interview process – that’s just to let you know now so you don’t get a shock down the line.”) No one from the Board or HSE has ever disputed this.

He disputes the Respondent’s defence that he suffered no adverse treatment arising from what SB stated either in her draft letter or at the meeting on 18 May. He said what was stated by SB was discriminatory treatment in and of itself.

He denies that he received two job offers – both for fixed term contracts. He said that never received any offer. Terms were discussed in emails but a job offer was never actually made to him. And his request that he be allowed meet with the Board was ignored. SB made it look like she was offering him a job but it was a diluted and limited version of the job that had been agreed and what more even at that, no offer was ever made to him.

There was no pre-condition that €160,000.00 needed to be raised before he would be appointed. The Respondent has not provided any evidence during the Adjudication to support that and it was not part of the MoU.  

The Complainant contends that this “no funds” defence is an attempt to distract from what was said at the meeting on 18 May 2022, that he would not get the job because of his distressed state, his mental health condition for which SB said he needed treatment. These views disclose discriminatory conduct (based on a perception of the Complainant having a mental health condition, which was not true) which SB came up with herself. For the Respondent to now assert that the reason he was not employed was because of insufficient funds shows disingenuity and that the Respondent (SB) changed its position on an expedient basis ignoring the real reason that he was not hired, as was corroborated by SB’s draft letter dated 12 May (“mad fucker” and she would not work with him in his current “distressed state.”)

What was said about him (on 12 May)  and to him (on 18 May) is prima facie proof that his access to employment was prevented due to an imputed mental health disability for which there is no evidence.

During the Adjudication process, between the second and third hearing days, the Complainant requested that documentation held by the Respondent be provided to him,  including financial records of the Project. He said that no such documents were not provided to him, nor was any explanation provided. The Complainant asks the Adjudicator, that an adverse inference be drawn from this.

KR(HSE)

KR (HSE) gave the following evidence under oath:

KR(HSE) knew the Complainant from 2013.

It was the Complainant was the person who came up with the idea of the Project. It was a project of passion for him. He had great drive and determination.

KR (HSE) worked in HSE services and agreed to assist and support the Project because it was a great concept and KR (HSE) believed that the Project could significantly help mental health services in the region. For the HSE to fund the Project, it was necessary for the Project to pair with an existing mental health Charity, to allow the Project to receive HSE funding and for governance purposes. The Respondent was an appropriate match and in September 2021 KR (HSE) met with SB, to discuss the possible pairing and what the role of the Respondent would be in the Project.

A verbal agreement was reached between the HSE and the Respondent, subject to due diligence requirements being met, following which a Service Level Agreement (and “SLA”) would be signed between the HSE and the Charity which allowed the Respondent, as a registered Charity to accept HSE funding on behalf of the Project and facilitate the delivery of the Project. The agreement was not between the Complainant and the HSE, it was between the Charity and the HSE.  It was also agreed that once the Project was up and running that the Complainant would register the Project as its own charity, and the Respondent, having facilitated the launch of the Project, would then step aside.

The parties have referred in evidence to a Memorandum of Understanding (an MoU) but the HSE refers to such agreements as SLAs. They are the same thing.

On the day of the signing of the SLA on 28 February 2022 KR(HSE) asked SB if all governance issues from a Charity Regulation point of view, had been complied with and SB assured her that they had.

KR(HSE) knew that there were immediate issues that needed to be sorted out; how the HSE building would be leased, how the existing HSE team in the building (who would be staying on) would work alongside the new Project team, how to support the volunteers, what the geographical remit of the Project would be. There were operational challenges; a kitchen needed to be installed, a volunteer programme set up, utility services installed, gardens developed.  A number of issues that needed to be decided upon and worked out. Funds needed to be raised.

It was understood that an ODM would be employed by the Respondent and that person would be the Complainant. There was no agreement as to when the Complainant would be appointed into that role. The Complainant worked very hard without pay and had been doing this for years by this point. KR (HSE) did not accept that it was agreed that his appointment as ODM would not take place until €160,000.00 worth of fundraising had first been achieved, or even that the agreed salary for that post (€35,000) was in place before his appointment. The salary for this post would not come out of Respondent’s own funds but from the Project funds, so while she accepts that some funds were needed before he could be employed, the premise that that the Complainant would work on an unpaid basis until either €160,0000 or alternatively (his salary) of €35,000 had been raised was never discussed.

A breaking point occurred in late April 2022 when KR(HSE) had to inform the Complainant that he was not permitted to launch any fundraising campaign without the HSE first sanctioning it. This proved to be a form of tipping point for the Complainant because he then sent an email advising everyone that he was temporarily stepping back from the Project and that he needed time to replenish and repair.  

KR(HSE) was aware that the Complainant had been working hard without pay and that there were difficulties between him and SB, but she believed that the issues could be worked though.

KR(HSE) met with members of the Charity Board during which it was decided that the Project without the Complainant was rudderless and that he needed to come back. KR(HSE) understood that for this to happen, the Complainant would need to be paid. The existing arrangement was devaluing for him.

When KR(HSE) communicated this to the Complainant he asked for Board feedback on how things would be if he did return, because he would not accept returning on an unpaid basis. He wrote a letter to the Board, dated 11 May 2022, asking for their feedback.

SB discussed with KR(HSE) a draft letter dated 12 May responding to the Complainant’s email.  SB also discussed her concerns with KR(HSE) about the Complainant’s ability to return to the post, given his conduct prior to his step back and the fact that he had decided to quit without notice. SB drafted a letter to the Complainant which she sent to KR (HSE) to sanction.

KR(HSE) immediately replied to SB advising that the letter should not be issued.

SB’s letter to the Complainant referred to him being in “a distressed state.” It referred to SB’s view that his distress was not about the Project but was internal to him and went “back to past experiences.” She told the Complainant that he needed to “acknowledge the pain and stress in your own body, accept and forgive yourself for your own behaviours that have contributed to your distressed state. And then process and release. The process you find will be what you pass on to others but you’ve not done that yet.. This period of drama and stress and blame and anger has to end and it’s you that has to do that work on yourself…”

She then went on to say “I love everything I do and every mad fucker I meet, including yourself. But I currently have no desire to go back into a working arrangement with you in your current distressed state.”

In the letter SB accepted that the Operations and Development Manager post “was his” but would need to be advertised. She also said that more funds were required before this position could be paid for.

KR (HSE) advised SB not to send the letter to the Complainant because in her view it would not be received well by him. This was an understatement by KSE(HSE) who considered the language in the letter to be entirely inappropriate.

Between 12-13 May in a group email between the Complainant, KR(HSE), SB and other Board members, KR(HSE) and the other Board members reiterated their view that they wished the Complainant to return to the role so ensure the Project was delivered. SB’s view was that the Complainant needed more time off and that more funds would be required before an ODM could be appointed.

A meeting was organised for 18 May 2022 which was attended by KR(HSE), the Board, SB and the Complainant.

The meeting started with a discussion of the ODM post. SB voiced her concerns about the Complainant being appointed to this role at that time.

SB stated that the Complainant had “a mental health issue for which he needed professional help” and that he should take a step back from returning to the post until he got treatment.

KR(HSE) knew that this was SB’s view, as she had already written it in the draft letter but given that KR(HSE) had told her not to send the letter, she was surprised that SB said this at this meeting. The meeting was supposed to be a meeting to calm waters and get the Complainant back into work. KR (HSE) immediately objected to SB’s remarks because they were inappropriate. SB had no basis to say what she said.

The Complainant immediately objected to SB’s comments on the basis that they were discriminatory.

KR(HSE) asked SB to withdraw her remarks, which SB did but then followed that by saying that she would not work with the Complainant if he returned at that time. At this point the Complainant left the meeting.

Later on the 1st June 2022 KR(HSE) wrote to the HSE Team leader of the Project (her line manager) advising what had happened at the meeting of 18 May. She described that SB had unfortunately made the Complainant’s return to work dependant on him receiving “professional help” for his “mental health.”

On 19 May 2022, KR(HSE) and the rest of the Respondent board agreed that (a) SB should not have said what she said to the Complainant at the meeting and (b) that the project needed the Complainant back if the Project was going to happen.

An email exchange took place about what job could be offered to the Complainant to sort out the issue. SB stated that the most that could be offered to the Complainant was a fixed term 8 week contract. KR(HSE) discussed this with the Complainant who indicated that he was not interested. However no job offer was in fact ever made to the Complainant. Job descriptions were circulated and terms were discussed but the Complainant was never ever offered a job. To KR(HSE,) SB was the main opponent to the Complainant returning to work.

On 23 May 2024, the Complainant sent an ES1 form (dated 20 May 2024) to the Respondent claiming that SB discriminated against him during the meeting of 18 May 2022.

On 23 May 2022 KR(HSE) received a group email from SB (which the Complainant was also included) in which she outlined her view which was that the Complainant could be offered a paid fixed term post. SB suggested that the terms of the post would change; the Complainant would not lead the Project alone, that the responsibilities would be shared out among other staff, the post title would be changed an Operations and Development Officer rather than being a managerial role.

On 25 May the Complainant replied advising that he was concerned about the change of job title and asked to meet with the Board. KR(HSE) was aware that this request to meet the Board had been made and had not been responded to.

KR(HSE) too was concerned about the change to the job title. This seemed to be coming from SB, not the rest of the Board. But she was more concerned about the HSE being drawn into decisions about employment contracts, when the HSE were not either the Employer or proposed employer.

After the Complainant issued an ES1 form against the Respondent claiming discrimination SB arranged a meeting of the Committee. Even though the Complainant was a member of the Committee he was not asked to attend the Committee meeting. KR(HSE) was not comfortable about his exclusion and asked that the meeting be adjourned so that the Complainant also present. KR(HSE) thought that the Complainant was being side lined.

In mid-June SB asked KR(HSE) to attend a meeting with the Chair of the Charity and the Chair of the Committee. KR(HSE) rang SB in advance to ask what the meeting was about and was told that in a letter to her dated 13 June the Complainant had threatened to report to the HSE that when the Service Level Agreement (MoU) was agreed the previous February, the Charity Chair was not registered with the Charity Regulator. SB suggested to her that to remedy this another person could step on behalf of the Board, but this suggested person was not registered with the Charity Regulator as a Board member.

KR(HSE) wrote to SB on 16 June 2022 advising her that the MoU was null and void and asked that the Respondent step back from all Project related activity and to arrange a hand over of all management of the Project.

In August 2022 a HSE senior manager told KR(HSE) that he had been informed by SB that Project funds from a garden event were missing and he asked KR(HSE) to explain this.  KR(HSE) was made to feel that she was under scrutiny for this, even though the funds had been accounted for.

Under cross examination KR (HSE) said:

She did not believe that the term “mad fucker” in SB’s draft letter dated 12 May 2022 was affectionate. She accepted that SB initially had good intentions and had compassion for the Complainant but what was stated in the letter was inappropriate. She understood the letter to communicate SB’s view that she would not work with the Complainant unless and until he got mental health treatment/ support.

She refuted the assertion that SB did not use the words “professional help” at the meeting of 18 May 2022. SB clearly stated her view, which corroborated the content of her 12 May letter, that she would not work with the Complainant unless and until he got professional mental health treatment/ support.

When asked did she not offer an 8-week post to the Complainant on 19 May, she said that she was asked to canvass his view on such a role and that he had responded that he was not interested. After that there were emails threads and discussions around possible job descriptions and titles but that given that the HSE would not have been the employer, it was not up to her to offer him a job. It was up to the Respondent to offer him a job if they wanted to. To her mind, while jobs descriptions were discussed, no job offer was ever put to the Complainant.

When asked if there was anyone else in mind for the ODM job, KR(HSE) said no that it was always the Complainant. The whole project was his creation.  When shown an email dated 1 June 2022 where she wrote to the Chair of the Committee in which she stated that the Complainant had been offered a job on the 19 May 2022 to start on the 1 June, she said that it was not her responsibility to offer him a job.

When it was put to her that in June, he was also offered a 3 month job with a varied job title, KR(HSE) accepted that there was an email discussion about that but no job offer was ever put to the Complainant as far as she knew.

When it was put to her that there were no funds to offer him anything other than a 3 month post, KR(HSE) said that the whole dispute was not about funding because the job being filled would have led to funds being raised. The dispute arose from the breakdown in SB’s working relationship with the Complainant. It was because of what SB said at the 18 May meeting and because there was never accountability for that.

But despite this in early June KR(HSE) still thought that a solution could be found but then everything changed in mid-June when the Complainant informed her - which was subsequently confirmed by SB - that she had been misrepresented to by SB the previous February when SB told her that the Respondent was Charity Regulator compliant, when it was not. This misrepresentation was serious and significant. Public funds had been committed on foot of guarantees which were found to be false.  

KR(HSE) had no option other than report the matter to her superiors and declare the SAL/MoU to be null and void.

The Project ultimately did not progress and the centre never opened.

The Respondents defence to this complaint may be synopsised as follows:

1.       Preliminary Applications:

 No jurisdiction.

The Complainant has brought this complaint against the trading name of the Charity, not the legal entity, namely the Trustees of the Charity. While there is jurisdiction under the 2015 Workplace Relations Act to amend the name of a Respondent, applying section 39 of the Organisation of Working Time Act (OWTA) because the Employment Equality Act 1998, (EEA) is not listed within the table of enactments within section 39 (2) of the OWTA the WRC has no statutory basis in complaints brought under the EEA,  to amend the name of a Respondent from its trading name to the name of a legal person.  The complaint as brought has been brought against a non-entity and on this basis there is no jurisdiction to investigate a complaint against a non-entity.

Special Circumstances

This is not a discrimination complaint. It arose out of an interpersonal work dispute but it is presented as a discrimination complaint. The complaint needs to be defended but any decision which canvasses the nature of the complaint, whereby a mental health charity is accused of discriminating against a person’s mental health (even though the complaint is strenuously disputed) would have the effect of significantly damaging the reputation of the Respondent and the important work that it does in the mental health charity field. The requirement that this dispute remains in the private sphere is of utmost importance. The Complainant acted unreasonably and was highly critical of the work of the charity. The complaint is unfounded but the allegations made, as spurious as they are would do untold damage to the Charity if the parties were identified. For this reason the Respondent seeks that the parties be anonymised in the published decision.

2.       Defence to the Substantive Complaint.

SB, secretary for the Respondent gave evidence under affirmation as follows:

(a)    SB knew the Complainant had been working on the feasibility of this Project since 2019. The centre was a great idea and SB saw that the Complainant had both the drive and passion to make it work.

(b)    The Complainant approached SB in November 2021 to suggest a partnership with the Respondent. SB understood that the Respondent’s charitable status was needed by the Complainant to fund raise for the Project.

(c)     SB knew the Complainant had been working intensively and was not being paid.

(d)    It was agreed that the Complainant would ultimately be appointed to the role of ODM but not until funds had been raised to pay the Complainant. It was the Complainant who suggested that the Project needed a basic operational cost base of €160,000.00 and out of which he, once appointed, would receive a salary of €35,000.00

(e)    The Respondent only ever raised €15,000.00 for the Project.

(f)      SB accepts that the Complainant was under immense stress before his “step back” on 28 April 2022. He was working hard, he was not being paid, he was disagreeing with people that he was working with on the Project - including KR(HSE), SB and others. Every dealing with him found him to be highly charged and adversarial. He was clearly distressed. He said himself that he needed to “replenish and repair”

(g)    After he quit, SB went to the Complainant’s house to visit him because she was concerned that he might be at risk to himself.

(h)    From April 28 – 18 May 2022 the Complainant was not at work.

(i)       On 12 May SB was asked by KR(HSE) if in her view the Complainant should return to the project and her view was that it would be a mistake, mainly from his point of view.

(j)      She accepted that she sent the draft letter to KR(HSE)

(k)     She accepts that she used the term “mad fucker” to lighten her letter. By that she meant that he was driven and ambitious, possibly to his own detriment.

(l)      SB’s thinking was, that the Complainant should take a break, the Project would continue and when he was replenished he could return to the Project, with some work having been done for him by others. But she also needed a break from his constant criticism and negativity. He was difficult to work with at that time.

(m)  The letter was not sent to the Complainant. It was a draft that was sent to KR(HSE) only.. It was a draft letter that– until the WRC complaint issued – was not shown to any other person other than KR(HSE).  It was not intended to be discriminatory

(n)    SB’s reference to the Complainant being a “mad fucker” referred, not to a person with a mental health condition, but to a person who was highly driven to achieve, as the Complainant was. The reference was intended to be a term of endearment, admiration for the Complainant’s willingness to “go the extra mile” to not stop until the Project was up and running. She did not mean it as a discriminatory term. It was meant affectionately not aggressively.

(o)    At the meeting on 18 May, her view had not changed. Given the Complainant’s state of mind, she felt that it would be damaging both to him and to the Project for him to be offered a contractual position at that time. He was under pressure and her was very confrontational about everything.

(p)    Given the deterioration in their relationship, then would have been the wrong time to enter into a contract with him. He was too angry with everyone.

(q)    By then her working relationship with the Complainant was under strain. This was because the Complainant had been working very hard and was not being paid. Everyone understood his frustration, but his ability to work without falling out with everyone, including the HSE was wearing thin. He was annoyed by everything and everybody. He was highly critical of everyone within the Charity.  He expected everyone else to work as hard as he did and seemed unaware that the Project was only one aspect of the Charity’s work. If things were not done in the way or at the speed that the Complainant wanted, he became confrontational. It became impossible to work with him.

(r)     When the HSE intervened in late April to tell him he couldn’t launch a social media fund raising campaign without their sanction, the Complainant reached a breaking point and stepped back from the Project.

(s)     In his step-back letter he himself referred to his need “to replenish and repair.” What could this have meant other than he was distressed.

(t)     SB denies saying at the meeting that the Complainant needed “professional help for his mental health.” She meant to say “you need help with your anger issues” but fearing that would be an inflammatory thing to say, she instead said “you need help with your mental health issues

(u)    SB accepts saying that he needed help with his mental health before he could be offered a permanent contract.

(v)     The meeting ended badly. Everyone on the Board agreed the next day – that the Complainant should be offered an 8-week contract - because that was all that the Respondent could afford.

(w)   Once the Board decided to get him back and her reservations had not been taken on board, SB set about trying to figure out what kind of job could be fashioned for him, given the low funds that were available. Given that the Project only had €15000 in funds a salary of €35000.00 could not be agreed. There was only money for was a short-term contract. If more money had been raised, then that would have been a changed situation, but it was not there at the time.

(x)     On 23 May 2022 there was a meeting to see what terms and conditions could be agreed but SB’s communication with the Complainant was deteriorating. At the meeting it was agreed that he would be approached to see if he would accept a 3-month contract by which stage there would be more funds and the Project would proceed. KR(HSE) was asked to approach the Complainant. She reported back that he was not interested in 3 months. For him it was presented as all or nothing.

(y)     SB tried her best to devise solutions to the problem but anything that she came up with was rejected by the Complainant.

(z)     The only reason he did not receive a permanent contract was due to a lack of funding. Despite SB’s concerns about the Complainant’s anger issues, if the money had been there, she would have agreed to him being appointed to the ODM post.

(aa) The Complainant’s email to her on 13 June was a threat. It was an effort by the Complainant to embarrass both her and the Charity. The breaches were technical issues which were remedied with the Charity Regulator within one week.

(bb)            Once she received his letter of 13 June she knew that she could not allow his threat to influence her decision to offer or not offer him a contract. She went straight to KR(HSE) to inform her, after which the Project MoU was rendered null and void.

(cc)  SB followed protocol in terms of the handover. There was money that had been raised at a garden event managed by the Complainant and KR(HSE) which SB was unable to account for. She was obliged to inform the HSE. It was up to the Complainant to vouch for all receipts, which was not done. Apart from that – all other funds were accounted for.

Under cross examination SB stated:

a.       That she had taken longer to get an insurance quote than the Complainant had.

b.       SB did resist setting up a separate bank account for Project funds, but that was only because she needed to seek Board approval first.

c.       SB did need to get Board approval for most actions taken with regard to the Project which did delay things. That’s how things run in charities. This is not the private sector.

d.       SB said there was no money to pay the Complainant a salary in March/ April 2022. She denied changing her position on the level of funds that were in the account.

e.       She denied that the delays that occurred were unnecessary.

f.        She denied not assisting the Complainant

g.       She accepted that he wanted everything done more quickly but matching the Complainant’s need for speed was not realistic in a collective enterprise.

h.       SB denied that the Complainant was forced to pay expenses from his personal funds. She gave him an expense request form and it was up to him to use it.

i.         SB denied that there were errors in the financial management of the Project.

j.         When asked if SB had any basis for calling the Complainant “a mad fucker” SB said that she meant it in a light hearted a way. It was supposed to be affectionate not aggressive.

k.       When asked to produce the text that SB allegedly sent to the Complainant when she allegedly called to see him after 28 April, SB said she could not find it on her phone.

l.         When asked about what she said at the meeting on 18 May if she had any basis to her claim that the Complainant had a mental health condition, she accepted that she had no basis. She said that she didn’t mean to say “mental health issues” but meant to say “anger issues.”

m.     When asked if SB would accept that not only the Chair of the Board was not registered with the Charities Regulator but also a board member was not registered, SB accepted this but that it was remedied immediately, and the Charity Regulator was fine with that.

n.       When asked if there was a decision before 18 May meeting to arrange a phased return of the Complainant to work, why she did not do this, SB said that he was not ready (he was too angry) and also there were only funds for a short-term contract.

o.       When asked if it’s the Respondent’s defence that he was offered a number of posts and that there was no adverse consequences to his alleged discrimination, why was he not provided with a job offer that the Respondent could point to, SB said that the Complainant had made it clear that he was not interested in a short term solution and he said this to KR(HSE) who confirmed this in her evidence.

p.       In terms of his penalisation/victimisation complaint the Complainant asked why he was not invited to the 2 June Committee meeting (at which a person who purported to be the Chair of the Charity but who was not the Chair of the Charity was present) SB said that they needed to discuss the claim of discrimination and how best to resolve the matter, without the Complainant being there.

q.       When asked if she again said at that meeting that the Complainant would need to commit to getting mental health support if he got a contract, SB denied this.

r.        When asked why the ES2 form did not provide any explanation for what SB said at the meeting of 18 May,  SB said the reason that he could not be offered a job was because of a lack in funds and that’s what the ES2 form set out.

s.        When asked, if that was so, why she didn’t say that at the meeting and why did she say that to employ him he would need professional help for his mental health, SB said that she was concerned about him.

t.        When asked why the Charity never disclosed to the HSE or during the Adjudication process the Project funds that were held by the Respondent, SB denied this.

u.       SB denied that her actions of reporting unaccounted monies to the HSE after the MoU was cancelled was because he issued an ES1 form alleging discrimination. It was part of due diligence with the handover of the Project. This was standard practice. SB accepts that it was lodged later but it was not lodged when it should have been done

Submission on law

1.       No jurisdiction because incorrect Respondent has been cited.

2.       Special Circumstances exist to determine that the decision should not identify the parties.

3.       The Complainant was not an employee. The Respondent accepts that prospective employees may bring a disability complaint in relation to access to employment and the Respondent also accepts that that prospective employees may bring a disability complaint in relation to a victimisation complaint.

Submission on facts

4.       No comparator has been identified by the Complainant

5.       No adverse treatment by reason of disability has been proven.

6.       The Complainant himself decided taken a step back from the post/ because he was under stress (“needed time to replenish and repair”) All that SB said at the meeting of 18 May was that he needed support to allow him to do the job. That is not discriminatory. That is concern.

7.       SB’s reference in her letter to the Complainant being a “mad fucker” was an attempt at light heartedness given that the Complainant was under pressure. It did not mean to refer to people with mental health issues. She meant it as people who were driven and determined to get a job done.

8.       SB denies saying at the meeting on 18 May that the Complainant receiving a contract would be determined on whether or not he got professional help for his mental illness.

9.       There were no funds to give him paid employment in April 2022. That was the only reason why he was not offered a job on or before 18 May meeting.

10.   After 18 May the Complainant was offered two jobs – one for 8 weeks and another for 3 months. The Complainant was offered two fixed term contracts which he rejected out of hand. There was little point in sending him a job offer if the Respondent knew that the Complainant would reject it.

11.   His employment was still being considered when the Complainant frustrated his own job prospects by threatening SB over the Charity’s technical requirements, which the Charity Regulator took no issue with. Any prospect for an ongoing work relationship between her and the Complainant perished at this point.

12.   The Complainant not only torpedoed his own employment prospects, but his actions also led to the ruination of the whole Project that he had worked years for.

13.   The Complainant has not proven any victimisation on foot of his ES1 complaint. His relationship had already deteriorated by then. The ES1 was issue on May 23rd. He was offered an 8 week and then a three-month contract after that date. The Complainant has no evidence to link his assertion that that the reason he was allegedly harassed was because he raised a discrimination complaint by way of an ES1 form.

14.   Being employed was always subject to funding being in place. KR(HSE) admitted this in her evidence.  Funding was not in place in April, May or June 2022 to offer him a contract of employment.

Special Circumstances

I am satisfied on the balance of probabilities that special circumstances exist to allow me to determine that the parties be anonymised in this decision. The Respondent is a mental health charity which, for reasons that will be canvassed later, has been criticised within this decision for actions that were done on behalf of the Charity. While SB is not the Respondent and the Respondent is not SB,  I am satisfied that SB’s actions were taken on behalf of the Respondent and the Respondent is liable for that which was done on its behalf.  

However I also accept that the Respondent’s engagement with the Project however was only part of a much wider remit that it has as a mental health charity and that it has done valuable work within the mental health field. The issues with governance and Charity Regulation were eventually brought to the attention of the Charity Regulator and therefore there is no need to publicly identify the Respondent for that reason.

I consider that the findings within this decision are the most appropriate way to remedy the wrongs that were perpetrated. However, to avoid disproportionately penalising the Respondent or undermine its reputation, which could negatively impact its funding and negatively impact the wider valuable work that it does, I am narrowly inclined to not identify the parties. I am also influenced by that fact that that there are other court legal proceedings in being between the parties and therefore public knowledge of the dispute between these parties will not confined only to the WRC decision.

Changing name of Respondent

I am satisfied that I have the jurisdiction (as is sought by the Complainant) to amend the title of the complaint proceedings from the trading name (as cited on the complaint form) to the legal person behind the trading name, ie the trustees of the Charity. The amendment that is sought will change the complaint form from referring to the Respondent as “Charity Name” to “Trustees of the Charity Name.”

I accept the arguments raised by Mr. Slein BL on behalf of the Respondent that the Employment Equality Acts are not listed in the table accompanying section 39 of the 1997 Organisation of Working Time Act. I accept too that the authorities on section 39 of the OWTA do not apply to complaints brought under the EEA.  I also accept that the WRC is a creature of statute and does not enjoy the jurisdiction to amend pleadings as a court with inherent jurisdiction does. However there are also a number of Superior Court authorities on the jurisdiction that quasi-judicial bodies and tribunals enjoy to remedy errors, as long as no prejudice is caused to the opposing party.

In this matter the Complainant was not legally represented. I accept that he erroneously cited the Respondent using its trading name, rather than its legal name, however I do not accept that arising from this error that the Respondent was not on notice of the existence or nature of the complaint, or that they were prejudiced and/or were unable to defend the complaint.

In the absence of having the statutory provision allowing me amend the name of the Respondent from its trading name to its legal person name, I find that I have this jurisdiction by relying on a number of Superior Court decisions, including that of Mr. Justice Walsh in the Supreme Court case of Halal Meat Packers v. EAT [1990 ILRM 293] and Mr. Justice McGovern’s High Court judgment in County Louth VEC v. Equality Tribunal [2009] IEHC 370 (commonly referred to as “Brannigan”) which was upheld by the Supreme Court in County Louth VEC v. Equality Tribunal [2016]IESC 40, an appeal decision, which has become centrally important to the operational jurisdiction of the WRC.

In his High Court judgment McGovern J. held:

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

Mr. Slein BL argued that Zalewski v. The WRC, an Adjudication Officer and the AG [[2021] IESC (commonly referred to as Zalewski) clarified the law to find that the WRC “has no inherent jurisdiction and no jurisdiction under or in relation to common law” [O’Donnell J at paragraph 116] which I accept is the case and was always thus, but this does not denude the earlier authorities of their force which push against excessive formalism in the operation of quasi-judicial tribunals, which are meant to be accessible to all parties, including parties who are not legally represented, so as to ensure access to justice.

As MacMenamin J held in the Supreme Court appeal of Brannigan, the WRC complaint form is not a statutory form. The content of the form is not provided for in statute. Its completion is not mandatory. Its purpose is to allow a complainant an opportunity to give an account of the basic details of their complaint. The complaint form is not a rigid pleading that may not be amended.

In this case the Respondent received the Complainant’s narrative in a complaint form which allowed it to prepare and present a defence. No prejudice would be caused by allowing the Respondent’s trading name on the WRC complaint form to be amended to the Trustees of the Charity.   To find otherwise would be a disproportionate and excessively formalistic approach to take, which I am not persuaded to adopt.

Applying this to the facts of this complaint, on the basis that no prejudice would be caused to the Respondent by the amendment, I allow the amendment of name of the Respondent from its trading name to the Respondent’s legal name, which I anonymise to be: the Trustees of a Mental Health Charity.

Findings on the Substantive Complaint

This complaint is made under the Employment Equality Act 1998 (EEA.)

From the contents of the complaint form and the evidence of the Complainant, there are essentially three questions that I am required to address in this decision.

1.       Was the Complainant discriminated against (by reason of imputed disability) in his attempts to access employment by what was expressed by SB in her draft letter of 12 May 2022 and by what she said at the meeting of 18 May 2022?

2.       Was the Complainant discriminated against (by reason of imputed disability) in his attempts to access employment (after 18 May meeting) by the Respondent not offering him the ODM role and only considering him for diluted versions of the ODM role (fixed period, title reduced, job responsibilities reduced) and preventing the Complainant from discussing this with the Board?

3.       Was the Complainant victimised by SB for raising a complaint of disability (by way of an ES 1 form dated 23 May 2022?

The first question raises an allegation of discrimination in relation to access to employment.

The second question raises an allegation of discrimination in relation to access to employment.

The third question raises an allegation of victimisation for making a complaint of discrimination.

I intend to deal with the last question first.

Question 3: Was the Complainant victimised by SB for raising a complaint of disability (by way of an ES 1 form dated 23 May 2022?

Jurisdiction

1.       The first issue to address in a complaint of penalisation/ victimisation is jurisdiction and whether the Complainant has rights under the Employment Equality Act (EEA) as an unpaid worker without a contract of employment with the Respondent.   

2.       Section 8(1)(a) of the EEA set out that a prospective employee may bring a complaint for discrimination (or imputed discrimination) in relation to access to employment. Therefore, I am satisfied that I have jurisdiction to investigate the first and second questions above.

3.       But for a worker to bring a Victimisation complaint – for being penalised for making a discrimination complaint (section 74(2) of the EEA) - the Complainant must be either an employee (under a contract of service) or (under a broader definition) have a contract of employment as defined in section 2 (1)(b)(i) of the EEA at the time the complaint was made.

4.       It is accepted by the Complainant that he was neither an employee and nor did he have a contract of employment with the Respondent when he sent the ES1 form on 23 May 2022, and therefore I am satisfied that the WRC has no jurisdiction to investigate the Complainant’s victimisation complaint as per Question 3 above.

5.       While I accept that the Complainant may not like the term “volunteer,” as he was  - at the time that he made the complaint - a person working for the Respondent on an unpaid basis, from a legal point of view, a volunteer is what he was.

6.       The High Court has found that volunteers are not covered by the EEA where there is no mutuality of obligation between the parties (Oberoi v. Garda Commissioner [2013] IEHC 267) and I am satisfied that fact that was able to stop working on the Project in late April 2022 without any consequences to him, indicates that there was no mutuality of obligation.

7.       I do not think that there is any great dispute about this - the central dispute between the parties was precisely because he was not given an employment contract and had no job security.

8.       For the WRC to have jurisdiction in respect of his Victimisation complaint, the Complainant needed to be an employee at the time he issued his ES1 form, which he was not.

9.        I am therefore compelled therefore to find that I do not have with respect to his penalisation (or more accurately) his victimisation complaint.

10.   The Respondent’s legal submission - that a prospective employee may pursue a complaint of Victimisation under section 74 (2) of the EEA - is in my view a concession that is not legally correct. Section 74 (2) refers only to employees, and under section 2(1) the definition of employee does not extend to prospective employees.

I will now turn to questions 1 and 2.

Question 1. Was the Complainant discriminated against (by reason of imputed disability) in his attempts to access employment by what was expressed by SB in her draft letter of 12 May 2022 and by what she said at the meeting of 18 May 2022?

The Law:

In terms of access to employment, section 8(1) of the EEA sets out that any discrimination on prohibited grounds (including disability) in terms of access to employment is prohibited.

Section 8(5) of the EEA provides more specific examples of the types of situations which may arise in the context of access to employment. This includes discrimination -  in subsection (a) -  “any arrangement the employer makes for the purpose of deciding to whom employment should be offered” and -  in subsection (b) -  by specifying, “in respect of one person or class of person, entry requirement for employment which are not specified in respect of other persons or class of persons…”

Section 6 (1) (a) (iv) states that discrimination shall be taken to occur where a person is treated less favourably than another person..in a comparable situation.. on any of the (prohibited) grounds which.. is imputed to the person concerned.

Therefore if less favourable treatment is found to have occurred because of a mental health disability, the fact that the person does not in fact have a mental health disability is immaterial, because imputed disability still meets the test.

Lastly the monetary cap for discrimination in terms of access to employment under section 82(4) (b) may not exceed €13,000.00.

Applying the law to the facts:

(a)    Draft letter dated 12 May 2022

In her draft letter of 12 May 2022 SB called the Complainant a “mad fucker” in the context of explaining why she did not want to work with him. She also opined that he should not be employed until he dealt with his mental health issues.

It is difficult to understand how such a letter could have been written by a person who had such long experience for many years in the field of mental health.

I have heard SB’s explanation, that this letter was meant to express concern for the Complainant, but the test of imputed disability (section 6 (1) (iv) is determined not by what was subjectively intended by the conveyer of the words but whether the words spoken (or written) were discriminatory on the prohibited ground of disability or imputed disability. The imputed disability in this case is a mental health disability (as per the definition of disability in section 2(1) of the EEA) namely “a condition…which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.”   I am comfortably satisfied that they were.

The fact that the draft letter, was only disclosed to one person [KR(HSE)] and was not sent to the Complainant (it was disclosed to him following an Freedom of Information inquiry by the Complainant) is not relevant. The extent of exposure may increase the impact on the victim, but it does not mean that the discriminatory conduct did not occur.

I am satisfied that the phrase used was discriminatory but moreover the fact that SB stated that she would not work with him until he got mental health treatment is prima facie evidence of discrimination based on imputed (mental health) disability.

In her evidence SB admitted that she felt that the Complainant should not be appointed to the OCD role, as had been agreed, because of the Complainant’s mental health problems at that time.

This admission alone allows for a finding that prima facie proof of discrimination has been discharged.

There is no need for a comparator given SB’s accepts that she said it was the Complainant’s mental health condition that prevented him being appointed to the role.  

As the prima facie test of discrimination based on imputed disability has been discharged by the Complainant the obligation to rebut the presumption passes to the Respondent to show that there was objective justification for what was expressed and no such evidence has been provided by the Respondent.

SB accepted that she had no knowledge or evidence that the Complainant had a mental health disability when she wrote the email to KR(HSE) on 12 May and the Complainant’s evidence  - that he has never been diagnosed with any mental health disability - was not disputed by the Respondent during the course of the Adjudication hearing.

As no evidence of objective justification has been adduced, I find that the Complainant was discriminated against by reason of imputed disability by the contents of SB’s draft letter dated 12 May 2022.

I find that this aspect of the complaint is well founded.

(b) The meeting of 18 May 2022.

If the letter of the 12 May 2022 was discriminatory, and I have found that it was, what was said by SB at the meeting of 18 May 2022 went even further.

While SB disputes that at the meeting of 18 May she used the words that “the Complainantneeded professional help”, she accepts saying at the meeting that she would not support the Charity entering into a contract of employment with the Complainant unless the Complainant committed to “getting support for his mental health issues.” Both the Complainant and KR(HSE)’s evidence concur that SB used the words “professional help.”

I am satisfied that the distinction of whether SB said “get support for” or “get treatment for” or “get professional help for” is immaterial, in circumstances where SB admits that a job that everyone accepted was to be the Complainant’s, should not be offered to him because of his mental health condition for which he needed treatment,  is an admission by the Respondent that the Complainant’s access to employment should not proceed because of his imputed mental health disability, of which there was no evidence.

I am satisfied that he was denied access to employment on grounds of an imputed mental health disability.

I find it extraordinary that it was said.  I also am satisfied that the Complainant was correct to call it out at the meeting as being discriminatory.

SB would have been entirely within her right to say that the Complainant has anger issues which she found impossible to work with or that their working relationship had deteriorated to the extent that working together was not possible, neither of which would have been discriminatory.

But to state at the meeting that the Respondent’s original plan, to employ the Complainant, should not proceed, because of Complainant had mental health problems, is prima facie discriminatory. And as already explained, in the absence of any evidence whatsoever that the Complainant had mental health problems (to justify this treatment) I find the complaint of discrimination to be well founded.

I wish to complete this by adding,  that is not a defence for SB to say that when she used the words “mental health problems” that she actually meant “anger issues” because, the test is whether the words that were used discriminated against the Complainant.  If, for example, a person used a racist slur against another person, it is not a defence to say that, in fact, they really meant to say something else.

Question 2: Was the Complainant discriminated against (by reason of imputed disability) in his attempts to access employment (after 18 May meeting) by the Respondent (a) not offering him the ODM role and (b) only considering him for more limited versions of the ODM role (fixed period, title reduced, job responsibilities reduced) and preventing the Complainant from discussing job options with the Board?

(a)    RE: The ODM Role in April 2022

1.       For the Complainant to succeed in the first aspect of this, his complaint he needs to first establish that at a particular time, he was entitled to be offered the position of Operations and Development Officer.

2.       I am not satisfied that the Complainant has established this.

3.       I accept that the HSE, the Respondent and the Complainant agreed even before the MoU was signed that, at some point, the Complainant would be appointed to the ODM role. But the timing of when that would take place was never agreed.

4.       The Respondent’s position is that the timing of his appointment was subject to €35000.00 salary or an overall budget of €160,000  being raised, I do not accept because there is no evidence to support this, other than an early email about likely outlays on the Project from the Complainant to SB.

5.       KR(HSE) evidence on this point (which I find to be more credible) was that while raising of a specific level of funds was not a precondition to his appointment, his appointment was subject to funds being raised. Her email to her line manager dated 1 June 2022 states “He originally engaged with [The Charity] to become the partner for the service and based on an agreement that he work as a volunteer to oversee the Project until sufficient funding had been raised to enable him to have a paid position.”

6.       The Complainant’s evidence was that funds had nothing to do with his appointment at all and that “by late April 2022, he had expected to have been appointed to the role” but he is unable to point to any specific time or trigger point after which the Respondent was obliged to appoint him.  

7.       I prefer the evidence of KR(HSE) on this point, not least because it makes the most sense, that the availability of funds to pay his salary must have played some part in the timing of when he would be offered the ODM role, so I conclude from this that the decision to not offer him the ODM role in late April 2022 was not a discriminatory restriction of his access to employment.

(b)    Re the alternative job descriptions

8.       The next issue is that following the 18 May meeting whether offering the Complainant reduced ODM roles instead of the full ODM role restricted his access to employment on discriminatory grounds because of the Respondent belief that the Complainant had mental health problems.

9.       I am satisfied that two variations of a fixed term contract were considered by the Respondent as possible jobs which could be offered to the Complainant but that he rejected them (when KR(HSE) canvassed them as possibilities with him) before any offer could be made. I do not criticise the Respondent therefore for not formally offering him these jobs which he had already advised he would not accept.

10.   However, while I accept that lack of funds must have still played a part in why the Complainant was not offered the full ODM role, that would only explain why a fixed term post wasn’t offered to him. It wouldn’t explain why the job duties was more limited that what had originally been envisaged.

11.   To explain why the job description was altered following the meeting of 18 May, one has to consider if during May and June, SB still remained of the view that the Complainant was incapable of doing the job because of a mental health disability.

12.   It is relevant that SB made no attempt to apologise to the Complainant for what she said at 18 May meeting and at the end of the meeting, while she retracted her comments, KRHSE and the Complainant both said that she then reiterated her view. There is no evidence that SB’s position that he was mentally incapable of doing the work altered after 18 May.

13.   Following the Board deciding that the Complainant should be reengaged, SB advised the Board and the Complainant that his job description should be more limited;  the responsibilities redistributed to others, the executive role that he had previously held redistributed among a team, his job title amended to officer instead of manager the reporting structure would change. This was a change from what all had envisioned in February 2022.

14.   If funding was the real reason to offer him only a fixed term contract, that would be explicable, but the job terms would not have to be reduced for that to occur. In my view that could only be explained because SB still doubted the Complainant’s capacity to do the job (due to his imputed mental health problems).

(c)     Request to meet the Board

15.   And if this were not the case, it is unclear to me why the Complainant’s request to meet with the Board to discuss the proposed terms and conditions of his return was not acceded to and that instead progress to a solution stalled from then until he emailed SB on 13 June.

Finding

16.   On the balance of probabilities,  I am satisfied that the reason why the Complainant was not offered his original post – albeit on a fixed term basis to allow funds be raised – constituted a restriction of his access to employment based on discriminatory on grounds of imputed mental health disability.  

17.   I am satisfied that prima facie evidence of discrimination for imputed mental disability has been proven. And in the absence of any evidence of objective justification for this adverse treatment the complaint of discrimination is well founded.

In respect of the Questions identified at the start of the Findings Section of this decision my answers are as follows:

Question 1 - Yes

Question 2 - Yes

Question 3 - No

Conclusion

To conclude, I am satisfied that prima facie evidence has been proven to show that the Respondent discriminated against the Complainant in relation to access to employment contrary to section 8(1) (a) of the ESA 1998, as a prospective employee, by reason of an imputed mental health disability, by specifying entry requirements (that before he could be considered for employment that he receive professional treatment for a mental health disability) which would not be applied to a person without such a disability. And that no evidence of objective justification has been provided.

I consider this complaint to be well founded.

I award the Complainant the maximum award that I am permitted to make under Section 82 (4) (b) of the EEA, the sum of €13,000.00 and I direct that SB undertake appropriate management training course in discrimination prevention, to ensure that this does not happen again.

I consider this complaint to be well founded.

I award the Complainant the sum of €13,000.00 and I direct that SB undertake appropriate management training in discrimination prevention, to ensure that this does not happen again.