Complainant

Respondent

Anonymised Parties

A Social Care worker

A Residential Care provider

Representatives

 Peter Dozie Okoroji

Judy McNamara IBEC

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-00054330-001

02/01/2023

The complainant commenced her current employment with the respondent in January 2020.

The Complainant subsequently progressed to the role of Deputy Team Leader, on 14th July 2021 and later applied for and was successful at interview for the role of Team Leader. She accepted this position on 19th of July 2022.  

The complainant who is Nigerian has submitted a claim of harassment on grounds of race and age as well as a claim of discrimination on those grounds,  in respect of  promotion and other. 

These claims arise out of a series of events which commenced with the complainant being successful at interview for a Team Leader position and following which another Team Leader was appointed a dual Team Lead role across two centres incorporating the Team Lead role which the complainant had been awarded.  The complainant later requested to step down to a relief contract which she retains. 

This claim was filed on 2nd January 2023, therefore the six-month cognisable period in accordance with the Act dates from 3rd July 2022 to 2nd January 2023. The Complainant alleges the most recent date of alleged discrimination occurred on 24th November 2022.

The complainant submits that.

She was working in the role of Deputy Team Leader and applied for an internal advertised position (Team Lead), she was interviewed (01/07/22), offered and accepted the position (19/07/22).

She was informed by the HR personnel that a contract would issue on confirmation of her start date by her line manager EN (who was out on a work-related illness) on EN’s return to work.

The complainant’s manager EN returned to work on 03/08/22 and announced to the team by email dated 04/08/22 the appointment of another individual LH as Team Lead, the same position that the complainant had already accepted.    LH was Team lead in another centre and was now appointed in a Dual Team Lead role across both centres.

The complainant submits that she immediately contacted recruitment and was  told by HR that they were not aware of the current development nor any changes to the offer made to the complainant.  On return to work on the 08/08/22, the complainant  had a meeting with her line manager EN about her announcement.     It is submitted that EN confirmed her awareness of the Team Lead position having been offered to the complainant and her acceptance of same.

The complainant submits that EN advised her that the situation was temporary and was due to a crisis in the other care centre which was also managed by EN and where LH was also the Team Lead.   EN advised that the decision in respect of the Dual Team Lead Role had been made by Director of Operation. (DOO) SB.

It is submitted that the  complainant contacted HR who were unaware of the Dual Team Lead role being awarded to LH and they undertook to revert to the complainant with clarification on her start date as Team Lead, but this did not happen.

Five weeks later the complainant requested another meeting with EN and asked for an update re her promotion.  Her Manager EN replied that HR had not responded and added that  they may be under pressure due to the relocation of the recruitment office, and she stated  that she would inform the complainant when she heard from them.

The complainant submits that she was undermined and criticised during this period which led to her requesting time off work due to health issues.  She submitted a request for I months  annual leave which was refused.    The complainant was advised that the annual leave requested could only be taken on a week on week off basis.   

Following this the complainant requested to step down to a relief contract on a zero-hour basis.    This was also refused, and she was advised that she had to accept a 40-hour relief contract.     

The complainant stated that she could not accept a 40-hour contract and she issued a formal complaint to the HR manager on the 15th of November 2022.

She stepped down to a Relief Social Care Worker role on 16th November 2022.

Following her request to step down to a relief contract she was processed as a Leaver and her position terminated.  She later clarified that she had not resigned and was reinstated and given a zero-hour relief contract as previously requested.

It is submitted that the respondent  specialises in providing Residential care, Community Outreach and Day Services to adults and children with complex support requirements on both the Intellectual Disability spectrum and Mental Health diagnosis.   

It is submitted that the Complainant initially commenced employment with the Respondent on 16th September 2019 and tendered her resignation shortly thereafter, her last date of employment being 1st November 2019, following the death of a family member and her reason for leaving was recorded as “personal/family circumstances”.    

In January 2020, the Complainant was rehired following a further successful application for the role of Assistant Support Worker.   Subsequently, having attained a relevant Level 8 Social Care qualification, and in recognition of same, she was awarded the position of Social Care Worker on 4th June 2021.   The Complainant subsequently applied for the role of Deputy Team Leader, was successful and accordingly promoted on 14th July 2021.

 A Team Leader role, a new role which was created in Centre A , at which the Complainant was based, was advertised internally on 20th June 2022. 

The Complainant attended an interview for the Team Leader role on 30th June 2022. The interview was conducted by the Respondent’s then Recruitment Coordinator TF and by EB who is the (Person in charge) PIC of centre C.

 At first instance the role was offered to another candidate, based on having returned a higher overall score at interview.   The other candidate turned down the offer and so it was offered to the complainant who accepted the position on 19th of July 2022.

At the time EN Dual Person-In-Charge, of Centre A (where the Complainant was based), and Centre B  was absent from work on both sick leave and annual leave, from 11th July to 1st August 2022.  

The Director of Operations (DOO) of both Centres, SB, returned from annual leave on 11th July 2022. SB, in attempting to address crises in both centres  asked LH, Team Leader, of Centre B, to step into a Dual Team Leader role between Centre A and Centre B.   It is submitted that SB was not at the time aware of the offer of the Team Lead role in Centre A having been made to the Complainant.

On 20th July 2022,  SB emailed the Recruitment Department and requested that a contract amendment be issued to LH for the Dual Team Leader role, with effect from 11th July 2022.

 In very unfortunate circumstances, SB was not advised by Recruitment that the role had already been offered and accepted by the Complainant.

 Equally, although the Dual role offered to LH was intended to be a temporary measure, the intended temporary nature of the contract amendment was not stipulated by SB to the Recruitment Department.

SB subsequently notified PIC EB (who had interviewed the Complainant for the Team Leader role) on an unconfirmed date between 20th July and 2nd August that she had placed LH in a Dual Team Leader role.   It is submitted that it was at this juncture that EB advised SB that in fact the Team Lead role had been offered to and accepted by the Complainant.

EB , PIC of Centre C and member of the interview panel subsequently contacted the Complainant by telephone and advised her that the Team Leader role she had accepted could not go ahead at that time, until further notice, as an interim Team Leader was being put in place who was already in a Team Lead role in another Centre”.

On 2nd August, PIC of Centres A and B , EN returned from annual leave and as she was covering for DOO SB  from 3rd – 5th August, during a handover, was advised by SB that LH was stepping into a Dual Team Leader across two centres, as an interim measure.  SB confirmed to EN that the Complainant had been offered and had accepted the Team Lead role and had been advised by EB that it was on hold due to the reasons set out above.

On 4th August 2022 and 8th August 2022, the Complainant  sought updates on her Team Lead position from the Recruiter, who sought the advice of EN and EB but did not pursue the matter any further.   By email of the same date, 8th August 2022 EB  advised EN by email of a conversation she had had with the Complainant with regards to the Team Leader role.

The following day, on 9th August 2022, the Complainant requested to speak with her PIC, EN, who confirmed that she was aware the Complainant had been offered the role of Team Leader, and that she was aware that PIC EB who had been on the interview panel had contacted the Complainant to discuss the matter.

 On 8th September 2022 the Complainant requested EN to furnish a letter confirming that she had been offered the Team Lead role. EN advised she had requested it from the Recruitment Team, who at that time were moving office and as a result, the letter had not issued.

The Complainant was upset and expressed her dissatisfaction with how the situation had been managed. She wished to know the start date for the role she was offered.  The Complainant continued to work in the role of Deputy Team Leader until 15th November 2023.

The Complainant, on 7th November 2022, emailed EN and the HR department, advising that she wished to reduce her contract to a relief “0” hour contract stepping into a Social Care Worker role, with effect from 16th November 2022.

A number of communications were passed between HR, Recruitment, EN and LH  between 8th and 15th November 2022, when a number of points were under discussion, including the Respondents request for a commitment that the Complainant work a minimum of 40 hours per month from the Complainant rather than moving to a relief contract. This was not suitable to the complainant.

The complainant also refused to work her notice in her Deputy Team Leader role and refused to complete her rostered hours for the rest of November 2022, ultimately advising of her intention not to return to work.

On 15th November 2022 at 7.32pm, The Area Chief Operations Officer, SK and  Human Resource Manager, EK, received an email from the Complainant outlining a number of concerns regarding an interview process she had participated in during June 2022 and the stress arising from the handling of that process.  

This Grievance also alleged that as a result of the manner in which the Team Lead process was handled, that she ultimately suffered emotionally and physically and ultimately decided to step down from her position as Deputy Team Lead and to seek to change her contract to a 0- hour Relief Contract.

The Complainant was due to go on annual leave on 20th November and due to return on 29th November. She did not return to work after this period of leave. Until receipt of the above-mentioned grievance email, the Area Chief Operations Officer or Human Resources Manager was wholly unaware of the situation. The HR Manager, EK , assigned the case to the Deputy HR Manager, NH, who immediately commenced preparation for a Grievance Investigation to ascertain what in fact had occurred.

On 23rd November 2022 in preparation for payroll, AK, Retention Officer advised payroll that the Complainant had left the service. Based on this information a Leaver Form was processed and the Complainant’s access to the respondents’ systems and her email account were deactivated on 24th November by the IT Department.

The Complainant called LH the following day, 24th November 2022 to enquire why her email account was not working and LH confirmed that she had been processed as a leaver as she had verbally resigned. The Complainant denied that she had resigned and ended the call abruptly.

By email dated 28th November 2022, the Complainant contacted NH advising that she had not resigned and had not submitted a written resignation. Ms H immediately sought to have leaver detail removed from the Respondent’s records and the Complainant’s access reinstated.  This was immediately completed. On 15th December 2022, the grievance hearing progressed. Immediately after the Grievance meeting NH approved the Relief contract as requested by the Complainant and instructed that the same be issued to the Complainant.  This was actioned immediately.   The Complainant submitted the within claim on 2nd January 2023.

The issues for decision by me now are whether or not the complainant was discriminated against by the respondent on grounds of age and race, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in relation to her promotion and other and whether she was subjected to harassment on the same ground’s contrary to section 14A (7)  of the Acts.    

In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …..”

Section 6(2) of the Acts defines the discriminatory grounds of age and race as follows – “as between any two persons that .. (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”), 

Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of race and/or age. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.   It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

Harassment is defined in Section 14A (7) of the Acts as 

‘any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures, or other material’.

 Section 14A (2) provides a defence for an employer if it can prove that it took. 

reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis].

Discrimination

The complainant advised the hearing she was working in the role of Deputy Team Leader in Centre A and following an internal application and interview process she was offered and accepted the position of Team Lead in the same centre on 19th of July 2022.  The complainant had initially been advised that she had come second in the promotion competition but after the successful applicant refused the role the complainant was informed by HR that she had now been awarded the role and that a contract would issue on the confirmation of her start date by her line manager and Person in charge (PIC) EN on EN’s return to work (EN was at the time out on a work related illness).

The complainant advised the hearing that her manager and PIC, EN returned to work on 03/08/22 and announced to the team by email dated 04/08/22 the appointment of another individual LH as Team Lead in Centre A, the same position that the complainant had already accepted.    LH was Team lead in another centre, Centre B and was now appointed in a ‘Dual Team Lead’ role across both centres.

The complainant advised the hearing that after seeing this email she approached EN referring to the fact that she the complainant had following the recruitment process been awarded and accepted the Team Lead role in Centre A the role which was now being given to another Team Lead LH as a  Dual Team Lead role across both centres.

The complainant told the hearing that EN advised her that the decision had been taken by the Director of Operations  (DOO) SB who decided to expand LHs role as Team Lead in one centre to a Dual Team Lead role across both centres.    EN told the complainant that the situation was temporary and was due to happenings in the other centre which EN also manages and in which LH was Team Leader.  EN referred to a serious incident which had happened in the other centre the details of which she could not disclose.   EN stated that the Dual Team Lead role awarded to LH was temporary but she then she refused to commit to a date when the complainant could start in the Team Lead position. 

The complainant advised the hearing that she had then requested a letter indicating the Team Lead position in Centre A was hers, as well as a future start date, The complainant stated that EN  agreed to request this from the HR department and to revert back to the complainant.  

This resulted in a situation whereby the complainant having been awarded and accepted the Team Lead role in Centre A was then forced to report to a Team Lead from another house. 

The complainant advised the hearing that five weeks after this meeting, she requested another meeting with EN and asked for an update on the situation.   The complainant stated that her Manager EN replied that HR had not responded, and she added that  they may have been  under pressure due to the relocation of the recruitment office but stated that she would inform the complainant when she heard from them.

The Team Lead situation remained the same and the complainant issued a formal complaint to the HR manager on the 15th of November 2022.

Witness for the respondent Director of Operations (DOO), SB advised the hearing that she had returned from annual leave on the 11th of July, she stated that July 2022 was a time when the service was in a state of crisis  following incidents in both Centre A and Centre B.    SB advised the hearing that a service user had fallen from a Velux window in Centre B on 8th of July 2022 and she stated that a number of staff members had been injured in this incident and so had been off work following the incident leaving the respondent with staff shortages.  SB  in explaining her reason for awarding a dual role to LH stated that it was a temporary measure to support both centres in a time of crisis.  

 SB stated that the Person in Charge (PIC) and Deputy Director of Operations Ms. EN had been injured in the incident and so had been off work on sick leave following the incident  and had then been on planned annual leave and only returned to work on 3rd of August 2022. 

SB advised the hearing that another incident had occurred in the complainant’s centre, Centre A on 14th of July 2022 where a service user had gone missing for several hours and had been found in the nearby village.   SB stated that the complainant had been unable to secure the service users return to the centre and had phoned Ms. SB crying about the matter stating that staff would not listen to her.   Following this phone call Ms. S had dispatched two male care assistants to bring the service user back to the centre.   The complainant stated that she had done her best to try and get the service user back to the centre, but she added that his return was eventually only secured with the assistance of the Gardai.

SB acknowledged that the service users return had necessitated the involvement of the Gardai and that the service user in question who had come from a psychiatric placement had to be re admitted to a psychiatric placement following the incident. 

SB advised the hearing that the Team Lead of a different house, Centre B, Ms. LH had dealt with the readmission of the service user to psychiatric services. 

 The complainant also gave evidence about this incident and stated that it was she who had prepared all of the documentation to have the service user returned to psychiatric services.  The complainant stated that she had prepared the documentation at the request of LH and had then sent it on to LH who later forwarded it to  SB.

The complainant stated that it was she who had secured the service users readmission to psychiatric services, but that LH had been given credit for this after forwarding the relevant documentation to SB.

The complainant advised the hearing that having been awarded and accepted the Team Lead role in Centre A on 19th of July 2022, the role was then given to LH by the DOO, SB who decided to expand LHs role as Team Lead in Centre B  to a Dual Team Lead role across both centres which meant that the complainant was then forced to report to a Team Lead from another house. 

The complainant advised the hearing that this undermined her position with staff and caused unrest and difficulties within Centre A.  The complainant advised the hearing that during this time Deputy Team Leaders from the other centre where LH was also Team Lead  would come into Centre A  where the complainant worked and criticise her work and the work of the other staff in the centre.  The complainant stated that this undermined her and caused unrest among the staff. 

DOO, SB asserted that she was not aware at the time of expanding the role of LH to a dual Team Lead role that the complainant had been awarded the position of Team Lead for Centre A.   SB  in explaining her reason for awarding a dual role to LH stated that it was a temporary measure to support both centres in a time of crisis.  

The complainant disputes this and submits that SB was aware that  the position had been awarded to the complainant, but that  SB chose to award the position to LH a person of the same race and whom she knew personally rather than allowing it to be given to the complainant who is Nigerian.    

In addition, in disputing the reason given by SB for awarding LH the dual role the complainant stated that when the crisis was occurring in July, the complainant was the main DTL on the ground and was the person managing the situation.   She stated that she would then provide feedback to the DOO as the PIC, EN was out on a work-related injury.    The complainant added that during ENs absence LH came to Centre A only once.   

The complainant advised the hearing that during and after the crisis, LH remained situated mainly in Centre B.   The complainant stated that after managing the crisis at Centre A she herself completed the necessary documentation for the service user’s readmission to a psychiatric placement and  then emailed them to LH who remained in Centre B.   LH  then forwarded said documents to the PIC.

Based on these reasons the complainant submits s that the statement SB made is not correct and she disputes that LH was needed to support centre A after the crisis as  she wasn’t physically present in Centre A during or after said crisis, and it was the complainant who physically managed the centre during and after said crisis.

The respondent at the hearing in reply to the claims in respect of the Team Lead role being awarded to LH despite the fact that the complainant had secured the role following a recruitment process, stated that Ms. EN had returned from leave in August 2022 and at the time had been aware that the position of Team Lead had been advertised but asserted that she  was not aware that the position had been awarded to the complainant.   The complainant at the hearing disputed this stating that she had prior to the interview process discussed the fact of her applying for the Team Lead role with Ms. EN and Ms. EN had advised her that she was usually involved in the recruitment process but on this occasion, she would not be around for the interviews.

DOO SB  at the hearing also sought to assert that she was aware that the recruitment process had taken place but was not aware that the complainant had been awarded the position at the time she decided to expand LH s Team Lead role in Centre B to a Dual Team Lead role giving her responsibility for both centres .    When asked whether she would have taken a different approach if she had been aware that the position was awarded to the complainant, she stated that she had needed the support of an experienced Team Lead at the time due to crises which had taken place in both centres.    SB added that LH had been a Team Lead for 9 months at that stage working in the other centre and she stated that she needed the support of LH.  SB added that LH was very experienced and capable.  SB advised the hearing that she had just returned from annual leave and needed someone immediately and stated that for the complainant stepping up from DTL to TL would have been  a big step.

The complainant made the point that the DOO has stated that she knew the TL position in Centre A had been the subject of a recruitment competition but that she did not know that the position had been awarded to the complainant. 

It strikes me as strange that the DOO did not at this point contact HR before making the decision to appoint LH to a dual Team Lead role across both centres.

The complainant advised the hearing that her claim of discrimination on the race ground is based on the fact that LH was offered the position without following due process and without any recognition that the said position had been offered and accepted by the complainant.    The complainant stated that  this would not have happened if the complainant was Irish and if her name had been O’Connor or O’Brien.   The complainant stated that she felt that the respondent had hoped that she would just let the matter go and accept that LH was now Dual Team Lead over both centres despite the fact that the complainant had been successful at interview.  The complainant who is Nigerian added that she had gone through a specific recruitment process and interview to obtain the role of Team Lead in Centre A whereas LH who is Irish had not even interviewed for that position and had been awarded it by virtue of the DOO simply deciding to change her contract to that of a Dual Team Lead role.

Complainants Request to take 1-month annual leave.

The complainant advised the hearing that the situation in work whereby the position she was awarded was then awarded to LH in a dual Team Lead capacity had the effect of undermining her authority with staff.  In addition to this the complainant stated that Deputy Team Leads from other centres were being sent in to criticise the work of the complainant and other staff members thus further undermining her position in Centre A.   The complainant advised the hearing that all of this started to take a toll on her emotionally and mentally and she had found the situation very stressful.  The complainant  stated that she had become increasingly stressed by the situation and had gone to her GP who found that her blood pressure had been increasing and so she decided to take some time out and take a period of one month’s  leave.     

The complainant advised the hearing that she had applied to take this month off as annual leave, but her request was refused.     The complainant stated that she had approached EN and LH about the proposed leave and was refused.   The complainant stated that she was told that she could not take such a large block of leave without notice but that she could take it in blocks of one week and then come back for a week in between and take the final two weeks together.   The complainant advised the hearing that she had requested this annual leave for mental health reasons and stated that she advised the respondent of this and was told that the only way to get the time off in the format requested would be if she submitted a medical cert from her doctor.  The complainant advised the respondent that she did not want to take it as sick leave as she had accrued the annual leave and wished to take annual leave.    Her request to take on month of annual leave in one block was  refused and so she opted to take the annual leave on a week on week off basis as suggested by the respondent.

The respondent advised the hearing that the request to take the 1-month block of annual leave was refused for a number of reasons.  Firstly ,there is policy to be adhered to when taking a large block of annual leave and advance notice is required when seeking to take a large block of annual leave.

The respondent advised the hearing that the  Manager has the authority to approve or disapprove any request for annual leave, particularly requests for more than two weeks leave. The respondent stated that the PIC is responsible for running the centre and making decisions to ensure the delivery of service. The PIC can disapprove any request for leave.  The respondent noted that the complainant may have been unwell and, in such circumstances, advised her that if she provided a medical certificate, she would have been off work due to sickness, however this was not a channel the complainant wished to pursue.

The respondent added that at the time  of submitting the leave request  the complainant had already been rostered for the period she was now seeking to take as annual leave and the respondent stated that this would cause a disruption to the roster and to the allocation of hours to other staff also on that roster.  The respondent added that a reasonable suggestion was made that the compliant if seeking the time off due to health concerns could submit a medical cert from her GP and thus obtain said time off as sick leave.  The complainant refused to provide a sick cert and take the time as sick leave.

The complainant in response stated that other DTL’s had taken large blocks of annual leave including for periods of up to a month prior to this, but the complainant could not say when they had applied for such leave or whether they had given advance notice when requesting the time off.

The complainant also argued that many staff had now returned to work after taking leave and so there were plenty of staff to take over if she was on leave.  

Having considered this matter I am satisfied that the respondent does have a procedure which requires notice for taking a large block of annual leave and I am satisfied that the complainant in her request did not comply with the notice requirements.  I am also satisfied from the evidence of both parties that the complainant was advised that she could take the time off as sick leave in circumstances where she had indicated that the time off was due to health concerns, but she refused to do this.

Request to step down to zero hours relief panel.

The complainant advised the hearing that she did not get the break she required as she was only permitted to take the annual leave in blocks of 1 or 2 weeks at a time and that consequently her blood pressure wasn’t decreasing and so she had a conversation with her family about the effect her work was having on her. The complainant explained that she had lost her son three years earlier and was now dealing with a situation where her health was becoming an issue as she was suffering from high blood pressure so she and her family made a decision that it would be best for the complainant if she stepped down to a  zero-hour relief contract.

The complainant advised the hearing that she had requested the zero-hour relief contract from EN on 7th November 2022.   The complainant stated that she had called HR and asked them before she spoke to EN.  The complainant advised the hearing that she asked HR what she needed to do and was advised that she needed to send  an email to HR, the recruiter and copy her PIC.   The complainant stated that she told HR that she would speak to EN in person before sending the email to HR.

The complainant stated that she then advised EN of her wish to step down to a zero-hour relief contract for health reasons as she needed some time out.  The complainant stated  that EN advised her to put in a letter outlining this request which she did and sent it to HR on the 7th of November copying EN and two days later  she received a reply from the recruiter stating that the DOO needed to approve it.

The complainant told the hearing that she had not been told this previously as the day she had spoken to EN about stepping down the DOO was in the office and so if she was told she needed the approval of the DOO she could have had a conversation with her on that same day.

The complainant stated that after being told that it needed to be approved by the DOO, she discussed the matter with Ms. LH (who was covering for EN on leave).  LH  advised the complainant that she could not have a zero-hour relief contract and that LH wasn’t aware that the complainant had requested a zero-hour contract from EN who was now out on leave.   

The complainant advised the hearing that this conversation took place on the 15th of November and the complainant advised LH that she was finishing up that day as she was going on a period of scheduled annual leave and that LH had said to leave the matter with her as she had to discuss the matter with HR and the DOO.   The complainant advised the hearing that she had at the time stated that she needed zero hours as she couldn’t commit to any hours at the moment or this side of Christmas.    The complainant stated that LH then came back to her an hour later and said that the DOO approval had been granted for a 40- or 80-hours relief contract and that the complainant needed to give a months’ notice or the other option was to fill out a leaver form and resign altogether.    The complainant stated that she had clarified to LH that she was not leaving  but that she wanted zero hours relief as she couldn’t commit to hours this side of Christmas.

The complainant stated that she finished that day having requested a zero-hour relief contract.  She stated that she had been on prearranged annual leave for the next few weeks  but that it later came to her attention that she had been processed as having resigned.

The complainant stated that this was done as LH had advised HR that the complainant had resigned despite the fact that the complainant had not resigned and had not submitted a letter of resignation.  The complainant then contacted HR who later reinstated her having claimed that they had processed her as a leaver after LH advised them that the complainant had resigned verbally.   The respondent conceded that this should not have happened without a formal letter of resignation being received from the complainant and stated that the usual procedure is that a formal letter of resignation has to be received before processing someone as a leaver.   It was acknowledged that the respondent had erred in processing the complainant as a leaver without having received any letter of resignation from her.

The complainant again submitted that if she was Irish for example if she was an O’Connor or a Lambe, this would not have happened, and she would have been consulted rather than processing her as a leaver with her ever submitting a letter of resignation and based on the word of LH.  

The complainant again states that this apparent error on the part of the respondent amounts to discrimination on grounds of race and would not have happened to an Irish person.

Grievance Report Outcome

Following receipt of a grievance from the complainant on the 16th of November the respondent commenced an investigation into the matters raised.    A grievance meeting was held with the complainant on 15th of December 2022 following which the complainant’s grievance was upheld in part.   

Awarding of dual Team Lead role to LH after  Complainant already awarded the role.

The Grievance outcome report concluded that the respondents s internal recruitment process was not followed.   The Investigator acknowledged that while Senior Management have the discretion to put measures in place to support the service,  in this instance there was a clear breakdown of communication across all matters.

The investigator found that the  DOO and PIC believed the Dual TL role awarded to LH was on an interim temporary basis, however the contract issued by the recruitment team was of a permanent basis.  

The report concluded that the respondent failed to fulfil the verbal offer made to the complainant and the recruiter accepts her failure in responding to the complainants’ numerous requests, and her failure to provide a start date, and/or failure to escalate the situation to the Recruitment Manager, instead choosing to ignore the matter. 

 The PIC and DOO accept their failure to escalate the situation to the Recruitment Manager or the Human Resources Manager, instead choosing to ignore the matter. The investigator further determined that recruitment processes were not followed, and all parties involved did not act in a professional manner, not providing confidence in our processes, and therefore it was deemed that there were failings by all as part of the recruitment process.

Request to move to a Zero-hour relief contract.

The investigator found that there was miscommunication in relation to the process for reducing to a relief contract. Correct process is you speak with your direct Line Manager, who can approve a request, with the HR Managers approval, for someone who can confirm and agree their availability to complete minimal shifts per month. The PIC should discuss these requests with the DOO and the HR Manager and where requests are approved can submit the request to the HR Administrator to issue a relief contract. There is no requirement to contact the recruitment team at any point, and the complainant should have spoken with her PIC only in relation to this request. The investigator determined that the situation was not handled appropriately by any parties, including the complainant herself.   She also determined that the complainant was not being reasonable in her request.

Leaver form processed and complainant removed from employment without resigning.

During the grievance hearing the complainant stated that her payslip dated December 2022, for hours worked in November 2022, had been taxed on a week 1 basis.  She contacted Revenue and was advised that she had two periods of employment with the respondent, one up to November 2022 and one commencing in December 2022.   

The complainant also advised that she had spoken with LH in relation to not having access to her work email account, when LH advised her that she had processed the complainant as a leaver.   The complainant advised that this was done without a letter of resignation.

The investigator noted that LH had advised the investigator that during a conversation between LH and complainant the complainant had advised that she would not be available for shift the next day following a sleepover shift and also submitted that the complainant advised LH that she had accepted another job and would send letter of resignation later that evening.

 LH advised the investigator that she had sought the support of a member of the recruitment team, who advised her if the complainant could not accept the part-time contract, she should accept the complainants  resignation and submit a leaver form.

The investigator noted that LH at no point discussed this situation with the PIC or DOO.  The investigator determined that a leaver form should not have been processed without a resignation letter.

The investigators report states that LH has accepted that she should not have submitted a leaver form for the complainant without confirmation of written resignation and accepts that  she made a mistake and acted too quickly, without escalating the issue.

The investigator found a leaver form was submitted on 14th November but not  processed until 23rd November.   The complainant brought the issue to the attention of the HR Manager on 29th November, and due to the initial content of her email where she advised that she had not submitted a written resignation, the HR Manager immediately requested the leave date be removed from respondent’s records and the complainants account be reinstated immediately.

The complainant was also then approved for a zero-hour relief contract, which was issued to her  on 15th December 2022.

On review of this point the investigator noted that the respondents  internal practises were not followed in relation to processing of leavers, stating that this was an error and poor judgement by LH who made a decision to accept what she deemed was a verbal resignation.

Procedure was not followed in this instance and a leaver form was submitted by LH and at a later point authorised by a member of the recruitment/retention department, without any confirmation of resignation in writing.

This element of the grievance was upheld but put down to an error and poor judgement and which was rectified immediately on it being brought to the respondent’s attention.

Less favourable treatment on grounds of age

The complainant in lodging the claim lodged it on grounds of age and race but at the hearing made no specific reference to her age other than to say that Ms. LH was younger than her.

Less favourable treatment on grounds of race

The Complainant must discharge the burden of proof by showing that the difference in treatment is due to discrimination on one or more of the discriminatory grounds. Once the Complainant has established a prima facie case the burden of proof shifts to the Respondent. The rule is required pursuant to EU law and its rationale was explained in Ntoko v Citibank [2004] ELR 116:

“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach, and which may only be in the respondent’s capacity of proof.”

As discrimination on any ground may not be overt, careful sifting and weighing-up of the evidence is required in order to determine whether a presumption of discrimination is within the range of inferences which can be reasonably drawn from the facts established on the balance of probabilities.

In Dublin Corporation v. Gibney’s EE5/1986, a prima facie case was defined as:

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

The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v. Wineport Lakeshore Restaurant as follows: “It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

(i)      that she is covered by the relevant discriminatory ground(s)

(ii)    that she has been subjected to specific treatment and

(iii)  that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

Awarding of Dual Team Lead position to LH after complainant awarded position.

The complainant submits that Ms. LH who is Irish was awarded the position of Team Leader in Centre A without ever going through any recruitment process for that position and notwithstanding the fact that the complainant had been successful at interview for that position and had been awarded the role.    The respondent has asserted that the individuals involved namely SB, EN and LH had differing levels of knowledge as to the fact of the complainant having already been awarded the position however even when it was clarified that the complainant had interviewed for and accepted the position of Team Lead in Centre A, it is clear that no steps were taken by any of these individuals to rectify the situation.

In addition, the actions of recruitment personnel fell far short of what would be deemed as fair and reasonable having regard to the circumstances. 

It appears by all accounts that the respondent was hoping that Ms. O would just forget about the promotion and accept that LH had been given the role.

 I note that the complainant at the hearing repeatedly stated that she would not have been treated in this way if she was Irish or if her name was O’Connor.   The complainant also pointed to the fact that the individuals involved Ms. EN, SB and LH were all Irish. 

While the respondent denies that the treatment was related to the complainants race,   the respondent in its defence did not provide any plausible or reasonable explanation as to how or why the complainant after being successful at interview and being awarded the position of Team Leader at Centre A was then placed in a position where a Team Leader from another house was awarded a dual role and put in charge of the house where the complainant should have been Team Leader.

I note the findings of the grievance investigation on this issue point to a number of errors and failures in  communication and a failure to follow correct procedures as well as claims that senior personnel were not aware that the complainant had been awarded the position following the recruitment process.  

In addition, the means by which LH was granted a Dual Role and a change to her contract seems very out of sync with proper or fair procedures given that the DOO simply changed the contract of LH  to given her a dual Team Lead role with responsibility for both centres without any consultation or consideration of the fact that the complainant had already been successful at Interview for the post of Team Leader and was already working and in situ in the second house.

In the absence of any reasonable plausible explanation being advanced by the respondent I am satisfied that the complainant has established a prima facie case of less favourable treatment on the ground of race in respect of her promotion which the respondent has failed to rebut.  Accordingly, I am satisfied that eh complainant was discriminated against by the respondent on grounds of race  in respect of this matter.

Annual Leave Request

Having considered the totality of the evidence adduced in respect of the complainants request to take 1 month’s annual leave without notice I am satisfied that the respondent’s refusal of same does not amount to discrimination on grounds of race and or age.

Request to step down to zero hours relief contract and Leaver form.

Following her request to step down to a zero-hour relief contract which was refused the complainant was processed as a Leaver and her position terminated. 

I note that the complainant was given contradictory information regarding the process to be followed when requesting to step down to a relief contract.   I also note that the investigator found that there was miscommunication in relation to the process for reducing to a relief contract.

The respondent at the hearing acknowledged that mistakes had been made and that the complainant had unfortunately been the victim of poor communication and a failure to follow correct procedures.

I note from the evidence adduced that an email dated 8th of November from EN to HR,  EN stated that a zero-hour contract should not be approved for the complainant as she felt that ‘this staff member will not take on any shifts if given 0 hours. 

The is no reason given for this assumption by EN, but I am satisfied that it influenced the decision to refuse the complainant the zero hours contract which she had requested.   Bearing in mind the fact that the complainant in this case had previously worked for the respondent and the respondent was aware of her difficult personal circumstances as well as her health concerns I find it unusual that the request for zero hours was not at least discussed further, or consideration given to granting the contract.

I also note that EN in the email of 8th of November goes onto recommend that the complainant needs to commit to no less than 40 hours per month.  A later email from HR states that the respondent is trying to reduce 0-hour contracts, but I note it does not state that 0-hour contracts are no longer available or possible.   It appears to me that in circumstances where an employee has indicated that she needs to step back for health reasons further consideration or discussion should have ensued before refusing her application for a 0-hour contract.

I note the outcome of the grievance report indicates that LH advised the investigator that she had sought the support of a member of the recruitment team, who advised her if the complainant could not accept the part-time contract, she should accept the complainants  resignation and submit a leaver form.   The investigator noted that LH at no point discussed this situation with the PIC or DOO.  The investigator determined that a leaver form should not have been processed without a resignation letter.

The investigators report states that LH has accepted she should not have submitted a leaver form without confirmation of written resignation, and accepts she made a mistake and acted too quickly, without escalating the issue.

In considering this matter I am again reminded that those who discriminate rarely do so overtly and in the absence of any plausible explanation  by  the respondent I must accept the reason advanced by the complainant that the treatment she was subjected to was due race.

Having considered all of the circumstances and the evidence adduced in relation to this matter I am satisfied from the evidence adduced that the treatment of the complainant in respect of her request to move to a zero hours relief panel which was refused and following  which she was considered to have resigned also amounts to less favourable treatment and in respect of which the respondent has again failed to provide any reasonable plausible explanation or defence.

Accordingly, I am satisfied that the complainant was discriminated against by the respondent in respect of other specifically in respect of her request to move to a relief contract and the subsequent processing of her as a Leaver based on a form submitted by LH and without any formal letter of resignation having been submitted by the complainant.

Redress

In considering the redress to be awarded in this case I note that the complainant has since been offered the zero hours relief contract which she been refused in November 2022 but that she has not since worked any hours for the respondent.  The respondent submitted that the complainant prior to leaving had commenced work for a different employer.   The respondent at the hearing questioned whether the complainant has since commenced employment with a different employer, but the complainant declined to answer the question at the hearing.

In making my award I am also cognisant of the fact that eh complainant did not complete her rostered hours for November and did not provide the required notice when stepping down from the position of Deputy Team Lead.    I note that during the time encompassed by the complaint the complainant was offered the option of a Team Lead position in a different centre which she refused as she wished to remain in Centre A.  I note the complainants point that she was successful at interview for the role of Team Lead in Centre A where she had been working as Deputy Team Lead and so she had wished to remain there as Team Lead.   I also note the respondent’s assertion that it was not happy with how the complainant dealt with the crisis in centre A on the occasion where a service user had gone missing for several hours and that the DOO had to intervene to have the service user brought back to the centre, however no evidence was adduced that this was raised as a performance issue with the complainant.  I also note that no evidence was adduced to support any assertion that the complainant was incapable of carrying out the Team Lead role.

Harassment

The complainant advised the hearing that having been awarded and accepting the Team Lead role in Centre A the role was then given to another Team Lead LH by the DOO SB who decided to expand LHs role as Team Lead in one centre to a Dual Team Lead role across both centres which meant that the complainant was then forced to report to a Team Lead from another house.  The complainant advised the hearing that this undermined her position with staff and caused unrest and difficulties within the centre.  The complainant advised the hearing that during this time Deputy Team Leaders form the other centre where LH was also Team Lead  would come into the centre where the complainant worked and criticise her work and the work of the other staff in the centre.  The complainant stated that this undermined her and caused unrest among the staff. 

The complainant at the hearing outlined that she felt harassed by other DTLs coming into the house and said that she felt criticised and undermined by them.  The complainant did not link this behaviour to race and/or age as she merely stated that she felt criticised and undermined.  

The respondent advised the hearing that the complainant had submitted a grievance in November 2022 but stated that she had not made any complaint of harassment on grounds of race and or age.  In addition, the complainant when questioned at the hearing could not point to any complaint of harassment on grounds of age and or race.  She responded that she had in her grievance stated that there was unrest among staff and that DTLs coming in from other houses was unsettling for the team and were making the staff feel uncomfortable and made the complainant herself feel undermined.

The complainant in her evidence did not  point to any time or occasion when she raised allegations of harassment on grounds of race or age with the respondent or sought to invoke protection under any of its policies.  

I am satisfied that the complainant did not make any complaint of harassment on grounds of age and or race to the respondent and that the respondent was not in any position to take steps to prevent or reverse the effects of any alleged harassment.

Having considered all of the evidence, both written and oral, adduced at the hearing of this complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Act, 1998 to 2015, as amended. I find that:　

(i)   the Complainant was discriminated against by the respondent  on grounds of race in terms of section 6(2) and contrary to section 8 of the Act regarding her treatment in respect of her promotion to Team Lead and in respect of other specifically relating to her request to move to a zero-hour relief contract following which she was processed as a leaver without any formal letter of resignation being submitted.   Accordingly, I direct the respondent to pay the complainant €8,500 in compensation in respect of the discrimination.

(ii)  the Complainant was not discriminated against by the respondent  on grounds of age in terms of section 6(2) and contrary to section 8 of the Act in respect of her promotion and in respect of other specifically relating to her request to move to a zero-hour relief contract,  

(iii)   the Complainant was not discriminated against by the respondent  on grounds of age and/or race in terms of section 6(2) and contrary to section 8 of the Act in respect of the refusal of her request to take 1 month’s annual leave without notice.

(iv)   the Complainant was not subjected to harassment on grounds of age and or race contrary to  section 14A of the Act.