ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048162

Parties:

Complaint:

Date of Adjudication Hearing:  06/03/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

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

Background:

The Complainant contends that he was discriminated against when the Respondent refused him bereavement leave.

Summary of Complainant’s Case:

The Complainant has been employed as a Painter with the Respondent since 2018.  His dispute is that there is no entitlement to bereavement leave in the event of the death of an uncle, aunt, niece or nephew in the Sector, whereas in every other Public Service there is provision for such leave.    He is taking the action under the Employment Equality Act 1998 Section 86 which refers in Section 9 (b) to any person to whom an order relates that provision conflicts with an equal remuneration term in that person’s contract of employment.  The order for Bereavement Leave in the Civil Service provides for one day’s leave in the event of the death of an aunt or uncle.  No such provision was allowed to the Complainant when his uncle passed away and he requested a day’s bereavement leave.  The Complainant submits that the situation is similar to Labour Court Recommendation LCR 22015.  He is advocating for equal treatment for everyone in the health sector not just himself, as the matter of personal loss and associated grief applies equally to all public servants, regardless of the sector in which they work.

Summary of Respondent’s Case:

In July 2023 Mr Brennan applied to his line manager for a day’s bereavement leave following the death of his uncle.

Mr Brennan was advised by local management that under the current HSE bereavement policy the death of an uncle is not covered.

Mr Brennan accepted that this was correct but then claimed that other public service bodies do cover the death of an uncle as part of their bereavement policies and he was being discriminated against due to his employment with the HSE.

• Mr Brennan is employed by the HSE and therefore is covered by HSE terms and conditions.
• Mr Brennan requested a day’s bereavement leave following the death of his uncle. Local management correctly applied the terms of the HSE Bereavement leave policy.
• The HSE can only apply the terms of its own policy and cannot be responsible for policies which apply within other service bodies.

HSE management are satisfied that the claim of discrimination is erroneous.

Findings and Conclusions:

This complaint concerns the refusal of the Respondent to grant a day’s bereavement leave to the Complainant on the death of his uncle when other Public Sector employees are entitled to such leave.  

The Employment Equality Act 1998 prohibits discrimination as between any two persons in employment on the following nine grounds as contained in Section 6 (2) of the Act as follows:

• (a) That one is a woman and the other is a man (in this Act referred to as “the gender ground”).
• (b) That they are of different civil status (in this Act referred to as “the civil status ground”).
• (c) That one has family status and the other does not (in this Act referred to as “the family status ground”).
• (d) That they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”).
• (e) That one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”).
• (f) That they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”).
• (g) That one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”).
• (h) That they are of a different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”).
• (i) That one is a member of the Traveller community and the other is not (in this Act referred to as “the traveller community ground”).

The Complainant relies on Section 86 of the Act which deals with collective agreements or orders which may be declared null and void by virtue of Section 9.

Section 9 provides:

9. – (1) In a case where-

(a) an agreement or order to which this section applies contains a provision in which differences in rates of remuneration are based on any of the discriminatory grounds, and

(b) in relation to a person to whom the agreement or order relates, that provision conflicts with an equal remuneration term in that person’s contract of employment,

then, subject to subsection (4) that provision shall be null and void.  

While it is understandable that the Complainant considers the treatment of himself and others in the particular branch of the Public Sector is discriminatory, it is clear that his complaint is not based on any of the 9 grounds which is an essential requirement to consider any complaint under the Act.

The complaint is therefore misconceived under the Employment Equality Act 1998 as amended.  I find it not well founded.

Decision:

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

I have decided that the complaint is misconceived under the Employment Equality Act 1998 as amended and I have decided that it is not well founded.

Dated:   05/04/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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