Complainant

Respondent

Anonymised Parties

A Childcare Worker

A Childcare Provider

Representatives

Complainant’s Partner

Peter Dunlea Peninsula

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-00061726-001

22/02/2024

The Complainant commenced her employment with the Respondent as a Childcare Worker on the 30th of August 2016. She remains in the employment of the Respondent albeit that she has been on continuous sick leave since the 18th of October 2023. She alleged that the Respondent discriminated against her and harassed her on the ground of disability in the manner in which she has been treated during her sick leave.

The Complainant’s remuneration was agreed at €620 gross per week. Noting that the Complainant was on sick leave I enquired whether she was fit to engage in the hearing and the Complainant and her partner who represented her both assured me unequivocally that this was so

On the basis of the existence of special circumstances in this case, I make an order that this decision be anonymised pursuant to section 79(2) of Employment Equality Acts 1998 as amended (hereafter referred to as “the Act”).  Those special circumstances are the avoidance of any prejudice to the continuing working relationship between the parties and the avoidance of unnecessary embarrassment to the Complainant by revealing her identity when her personal circumstances are discussed in this decision.

The endorsement to the W.R.C Complaint form submitted on the 22nd of February 2024, (with edits to reflect the anonymisation Order) stated as follows:

I am writing to formally submit a complaint regarding the treatment I have experienced during my sick leave from [The Respondent]. I am deeply concerned about the inconsistent and intimidating communication I have received, which has significantly impacted my well-being. I commenced my sick leave on the 18th of October 2023, as per my GP's advice, due to severe anxiety stemming from pregnancy issues and a traumatic birth. I duly notified …the Manager, on the 2nd of October 2023, and despite following up on the acknowledgment of my sick certificate, I received no response until the 9th of October. The subsequent communications from [The Respondent] have been both inconsistent and intimidating.

I received a registered letter on the 17th of November requesting a welfare check, which felt unnecessary given my documented medical condition and advised leave until the 18th of January 2024. Seeking advice from Citizens Advice confirmed the inappropriateness of such a request at this stage of my absence. Despite providing a supporting letter from my GP outlining the ongoing treatment for my mental health issues and unfitness for work until at least the 18th of January 2024,

I continued to receive registered letters. On the 27th of November, another letter was sent, this time demanding a medical report and threatening occupational health intervention if not provided. Despite my proactive communication about my GP appointment on the 8th of December and subsequent submission of the medical report on the 20th of December, [the Respondent] failed to respond promptly. [the Manager]'s reply on the 21st of December, stating a discussion with the 'operations manager' and a response in the new year, further delayed any resolution.  Subsequent emails requesting updates were met with delayed and vague responses, and the latest communication, dated 22nd February [2024], proposed another wellness meeting on the 28th of February [2024].

It is concerning that [the Manager] seems to believe it is appropriate to push for an earlier return than my GP's advised date of the 15th of April. I find this inconsistent and sporadic communication deeply distressing, exacerbating my anxiety and hindering my recovery. It raises concerns about potential discrimination, as I question whether such treatment is standard for all long-term sick leave cases within [the Respondent]. I kindly request that the Workplace Relations Commission thoroughly investigates this matter to ensure fair and equitable treatment for all employees experiencing prolonged sickness.

The Complainant made a number of further detailed written submissions which are discussed in more detail in the findings section of this decision. The Complainant gave evidence as did her partner – both on Affirmation. The Complainant’s partner also acted as her representative.

The Respondent denied that at any point, it discriminated against the Complainant on the grounds of disability or any other ground as the Respondent treated her the same as any other employee at all times.

The Respondent denied that it victimised or harassed the Complainant. At all times the Respondent treated the Complainant with due respect and merely sought to facilitate her effective return to work if and when she was ready.

It was submitted that the Complainant failed to establish any links to discriminatory treatment during the course of her employment. The Complainant made mere assertions of alleged discrimination but failed to establish any evidential basis for those claims.

The Respondent made further detailed written submissions in response to those of the Complainant which are discussed in more detail in the findings section of this decision.

The Respondent called one witness, the Respondent’s Manager who gave evidence on affirmation.

Sequence of Events, Correspondence and Evidence

The Complainant went on maternity leave from the 1st March 2023 until the 29th August 2023 and then she went on parental leave from the 30th August 2023 until the 17th October 2023.

The Complainant then submitted a medical certificate on the 4th of October 2023 and went on sick leave from the 18th October 2023 until the 18th January 2024.

On the 2nd of November 2023, by registered post, the Respondent wrote to the complainant to invite her to her an informal welfare meeting in the following terms:

“In reviewing our records, I note that you have been on sick leave since 18th October 2023 because of postpartum depression/anxiety. Naturally, we are concerned about you and I am therefore writing to request your attendance at an informal welfare meeting either at our premises, your home address or elsewhere if you prefer.

The purpose of this meeting is to establish the nature and extent of your illness, how long it’s likely to be before you are well enough to return to work and what arrangements we might make to ensure your safety upon your return.”

The Respondent received a letter dated the 17th November 2023 from the Complainant’s doctor advising that that the complainant would not be able to attend the meeting. The letter further stated that ‘any forms of support will be appreciated for her health [and] wellbeing.’

The Respondent again by registered post, wrote to the complainant on the 24th of November 2023

“I am writing to request your consent to approach your G.P. or a specialist who has treated you for a confidential medical report on your state of health”

The letter noted that the sick notes that had been provided certified the Complainant from the 18th of October 2023 to the 18th of January 2024. The letter went on the say:

“…Taking into account the above I am concerned about your health and need to take this step so that we can properly assess your fitness for and likely return to work together with the impact of your absence on our organisation and resources. The report should also help me to understand the effect of your condition on your day-to-day activities and whether there are any reasonable adjustments we may be able to make that would assist you in returning to work.

Once this process is complete, I will then arrange a meeting with you to discuss the doctor’s findings and the possible next steps. While you have the right to withhold your consent to this process, doing so would mean that I would have to form a view as to those next steps without the benefit of up-to-date medical advice and opinion.

I trust you understand the reasons behind this letter, as we do have sympathy with your situation and I have no wish to worry you at this difficult time. However we do need to consider the operational needs of the organisation and consider what decisions need to be made….”   

On the 27th of November 2023, the Complainant’s manager received a telephone call from the Complainant’s partner during which the latter expressed dissatisfaction with the fact that the letter was sent by registered post. Other issues were also discussed (see below).

A Medical Report from the Complainant’s doctor dated the 18th of December 2023 was received by the respondent stating as follows:

               “I have been asked to prepare a short medical report for [the Complainant] for her employer…

[The Complainant] has been having issues with stress and anxiety since July 2022. At this time she was engaged in [treatment specified]. I note that she received certificates from us in July and has attended us on a large number of occasions both prior to, during and after her pregnancy with significant mental health issues, and we have deemed her unfit for work as a result. She had a lot of anxiety during her pregnancy, and as was likely to happen given that fact, she developed post-natal depression in the months following her delivery. She is attending us regularly and is commencing counselling soon. She is on appropriate medication. I would think that [the Complainant] is doing her best to recover and get back to work, however she is experiencing severe social anxiety which is impairing her ability to [function] outside of the home. She also experienced a severe bout of anxiety when a meeting with her HR manager was proposed, and when she receives written correspondence from her employer. I have discussed these issues with [the Complainant] and have encouraged her to engage in counselling, to gradually increase social interaction and engagement, and I feel that she will recover, though how soon she will be able to return to work is difficult to determine. I foresee at least another six to eight weeks at least. Should the situation change, and with [the Complainant]’s permission, I am happy to communicate with you in future should the need arise”

Following this the Complainant submitted a medical certificate certifying her as unfit for work from the 15th January 2024 until the 15th April 2024.

The respondent wrote to the complainant on 22nd February 2024 as follows:

“…I hope you are doing well. I am just following up from your GP report sent in from 18th December 2023 and your current medical certificate dated from 15th January until 15th April 2024. In your GP report your GP stated they can provide an update in 6 weeks and I am therefore writing to request your attendance at an informal welfare meeting either at our premises, your home address or elsewhere if you prefer to discuss the above.”

The letter went on to make similar references as before regarding the purpose of the meeting. The Complainant was advised that she could be accompanied by a family friend, relative or fellow colleague.

The Complainant replied on the same day as follows:

“There [are] a few things I would like to clarify

My GP did not say they would give an update in 6 weeks. They said I am doing my best to recover and that it is difficult to determine when that will be, but she estimates 6-8 weeks at least. At least means at the minimum and my GP has since signed me off work until the 15th of April.

I am unsure why you are requesting a meeting now given this new sick certificate. And as per a previous GPs letter I am not fit to attend a workplace meeting to discuss my welfare and potential return date.

I will be in touch closer to my return date to discuss this as per my obligations.”

In addition to the above email, on the same day, the Complainant also instituted the present claim to the WRC which was received by the latter on the 22nd of February 2024. The Complaint Form contained the submission quoted in the ‘Summary of Complainant’s Case’ section above. Following the submission of the Complaint Form the Complainant made further submissions by email to the WRC which included the following:

“…In the attachments, I am including two registered letters I received, which, in my opinion, and that of Citizens Advice when I contacted them, are unwarranted. This is especially true considering I was only approximately three weeks into a leave of absence of 12 weeks.

When I spoke to my own GP about this request for a welfare meeting via registered letter, my GP sent a letter to my manager telling her I wasn't fit to attend. The second registered letter, again, I did not see the need for it, considering I have never failed to communicate. It requested a medical report from my GP outlining my illness and my expected return date. Failure to do so would cause them to look at 'additional outcomes to support the need of the organisation' I am unsure what this meant or alluded to, but to me, it sounded as if failure to provide this would cause me to lose my job.

I am sending this to you as well, which I did to my employer as soon as I received it from my GP. After I sent this, I failed to have any concrete follow-up, which, naturally, caused me excess stress. I was then signed off for a following 12 weeks until April 15th and did not hear anything back from my manager when I sent this certification. I only received an acknowledgement when I queried whether it had been received.

The last correspondence I got from my manager was yet another request, this time via email, for a welfare check, even though my GP has already clearly stated I am doing everything I can to recover.

I am attaching all certificates, GP letters, email threads, and registered letters.

This communication, while battling postnatal depression and anxiety, has caused me unwarranted stress and panic. It has hindered my recovery and caused me to lack the confidence to return to work. I feel as if the validity of my illness is being questioned repeatedly. I do not know the reason for this – if it is because postnatal depression isn't treated seriously by my manager, if it's mental health in general that isn't treated seriously, or if the fact that the childcare sector is short-staffed, and my absence isn't convenient. Either way, I do not feel I have been treated the right way, and any claims that this communication is for my welfare aren't accurate. I haven't felt supported at all,

in fact, quite the opposite… “

The reference to registered letters was to the letters from the Respondent (referred to above) dated respectively the 2nd and 24th of November 2023. This submission, was copied by the WRC to the Respondent and to the Respondent’s representative.

A third invitation to a welfare meeting was issued by the Respondent by email to the Complainant on the 3rd of April 2024 stating as follows:

“…Following our previous email dated 22nd February inviting you to an informal meeting to discuss your absence, which you declined, I am now writing to request once again your attendance at an informal welfare meeting either at our premises, your home address or elsewhere if you prefer.

The purpose of this meeting as previously stated is to establish the nature and extent of your illness, how long it’s likely to be before you are well enough to return to work and what arrangements we might need to make to ensure your safety upon your return.

Please rest assured that any meeting will be purely informal and if you wish, you may be accompanied by a family friend, relative or fellow colleague.

I propose to hold this meeting on 10th April at 10.30am in [Respondent’s premises], in the event that you cannot attend this meeting I ask that you please contact me as soon as possible…”

The Complainant forwarded this email to the WRC  with an email of the same date stating as follows:

I would like to include this email, even when I have raised a complaint to you, I am still being asked to attend welfare meetings to discuss my welfare, level of sickness etc, even though my GP has advised I am not fit for work.

The email suggests it is only for my welfare, but my manager does not trust my GP to advise on my Welfare.

Following the first hearing, in response to the issues canvassed in the evidence I directed the Respondent to provide details of the number of individuals within the employment who were on long term sick leave and the way in which the sick leave of those individuals was managed by the Respondent. Thereafter, at a reconvened online hearing on the 29th of November 2024, I reviewed documents provided at my request by the Respondent and the relevant particulars from those documents were put to the parties for comment.

From the submissions and documents I established that there was a reorganisation of the management structures of the Respondent which led to the creation of new procedures for managing long term sick leave on the part of employees of the Respondent (hereafter referred to as “the New Procedures”).

There was some debate as to whether the introduction of the New Procedures was entirely due to staffing issues following the retirement of a senior manager. The Complainant’s representative contended that the documentation reflected that the reorganisation was underway prior to the retirement of this senior manager. She contended that the reorganisation commenced on the 6th of October 2023 two days after the Complainant’s medical certificate was submitted (certifying the Complainant as unfit until the until the 18th of January 2024). She submitted that the real reason for the review of procedures was a direct reaction to the Complainant’s medical certificate which, it was contended, was in fact the catalyst for the review rather than staffing issues and/or the retirement of the Senior Manager. The Respondent’s representative stated that the reorganisation arose from a review of all operational aspects of the business including a review of overall staffing and staff on sick leave. As there was previously no specific return-to-work protocols in the Respondent’s policy, new procedures for handling long term sick leave were put in place. This was done in line with advice from the Respondent’s HR advisors and industry practice. There were several reasons for the review including the impending retirement of the senior manager. The process did commence in anticipation of that date and it did commence before the retirement date itself.  The Respondent’s representative accepted that the receipt from the Complainant of a three-month sick certificate was very likely a factor which contributed to the review being undertaken soon after it was received. However, it was contended that fact that the submission of the medical certificate may have triggered or accelerated the review process did not constitute discrimination.

The Complainant received registered letters regarding the proposed welfare meeting in November 2023. I have verified that at that time there were three employees on long term sick leave as follows

a) Employee Number 1 had been on sick leave since February 2023

b) Employee Number 2 had been on sick leave since April 2023

c) The third employee is the Complainant who submitted a sick certificate on the 4th of October 2023 which certified her as unfit from the from the 18th of October 2023 to the 18th of January 2024. 

As part of the implementation of the New Procedures by the Respondent, a decision was made to send registered letters to all three employees on long-term sick leave to seek to have them attend a welfare meeting in November 2023.

In the case of Employee Number 1, these letters, which were similar to those sent to the Complainant, were sent out to that employee in November 2023. A welfare meeting was arranged with this employee, but this did not take place as that employee resigned from the Respondent’s employment in January 2024.

In the case of Employee Number 2, it was intended that this employee would receive registered letters similar to those sent to the Complainant in November 2023. However, this employee resigned from the Respondent’s employment on the 7th of November 2023, before the letters were sent. Consequently, no letters were sent to this employee regarding a proposed welfare meeting.

As regards the disabilities affecting the comparator employees I ascertained the following:

Employee Number 1: There were several medical certificates on file, only one of which made reference to the medical condition which was described as “Anxiety”.

Employee Number 2: There were several medical certificates on file, only one of which made reference to the medical condition which was described as “Clinical Depression”.

Summary of Case Made by the Complainant

At the hearing the Respondent and her representative summarised the case made as follows:

The ground relied upon was either disability or family status. In relation to disability the Complainant was diagnosed with post-natal depression. Regarding her family status it was suggested that the Complainant as a new mother, was attempting to return to work and this process was not taken seriously by the Respondent.

As regards disability discrimination, it was contended that the Complainant was treated differently to the way in which two other employees were treated by the Respondent who were also on long term sick leave. Even though these individuals also had or probably had a disability as well, the Complainant received different treatment from the Respondent in comparison to these employees. The difference lay in the manner in which the Respondent managed the illness of the Complainant by initiating a process commencing with a welfare meeting so soon into the Complainant’s period of sick leave. The point was made that in relation to the other two employees, the Complainant was only two or three weeks into her sick leave when the registered letter was sent to her whereas the other two employees had been on sick leave for a much longer period.

The Complainant alleged that she was never made aware of any changes in policy by the Respondent and she had a very negative reaction to the receipt of two letters sent by registered post. When the second of these letters arrived, being the invitation to the first welfare meeting, the Complainant had what her partner (who was present) described in her evidence as a “panic attack”. She felt intimidated by the letters. The Complainant’s partner took the letter from her and made a telephone call to the Respondent.  On this call the Complainant’s partner queried why the Respondent deemed it necessary to send registered letters as the Complainant had always communicated with the Respondent by email and these letters could easily have been sent by those means. In addition, the process being undertaken by the Respondent was questioned. The Complainant’s position was that she was unaware of any change in policy on the part of the Respondent with regards to sick leave management. She also said in her evidence that if she had been made aware that sick leave was being reviewed and a decision had been made to write letters to all employees on long term sick leave, this information might have alleviated her stress to a certain degree.

Regarding the second and third invitations to welfare meetings, the Complainant’s position was that they were unnecessary since her doctor’s report had made her state of health very clear and at all times when both invitations were sent, she had been certified by her doctor as unfit. She objected to being repeatedly subjected to unwelcome and unnecessary invitations to welfare meetings. The effect upon her was to increase her stress and hamper her recovery. She felt that neither she nor her doctor were being believed by the Respondent. She felt intimidated and she feared for her job.

The Respondent’s position as detailed in submissions and in evidence was as follows:

In and around the time of the first invite to a welfare meeting, on review of operations, it was agreed to ask employees on long term sick leave to attend a welfare meeting to support return to work as above. This was not a new policy but an operational review. There was no change to the Respondent’s employee handbook at this time. However, three staff members were on long term sick which had not been the case ever in the experience of the Respondent. To enable the Respondent to plan staffing levels and returns, it was necessary that discussions were held with all employees who were on long term sick leave.

All employees on long term sick leave were treated identically based on this review and the Complainant was not discriminated against.

Practices were in place to support employee in their return to work including informal return to work meetings, return to work interviews and an open-door policy.

The Complainant had previously attended return to work meetings in the past, completed return to work forms and engaged in informal meetings whereby she delivered her sick certs and updated on her wellbeing.

While the Respondent did introduce a more formal approach this was under HR guidance and in line with accepted practices in all sectors in Ireland. All company changes would have been discussed with the Complainant in person prior to her return and at the informal welfare meeting suggested, which she declined three times. Furthermore, the Complainant also requested that she did not want to be included in company updates, messages, what’s apps etc. while she was on leave. The proposed welfare meeting would have informed the Complainant on the company changes and prepared her for her eventual return once she was fit and able to do so.

Immediately upon being informed of the distress caused by the sending of a registered letter, the Respondent ceased to use this form of communication. Furthermore, the respondent reiterated that under no circumstances was the Complainant targeted and she at all times received the same communication as her peers.

The Respondent has an obligation to engage with its employee, especially those on long term sick leave. A welfare check cannot be a hostile act or a form of harassment, it is a way to check in with an employee and ensure that they are feeling safe and supported to return to work.

The Respondent at all times respected the medical advice given to the Complainant. The purpose of the welfare meetings was to support the complainant’s return to work and her recovery. All communications with the Complainant were sent with the intention of open communication between the parties and as the letters make clear there was no attempt to contradict the medical certificates received.

Summary of Heads of Claim Identified from the Complainant’s submissions and Evidence

The Complainant was represented by her partner and neither is legally qualified. In such circumstances I endeavoured to ascertain from the submissions and evidence what types of claim were being advanced by the Complainant regardless of how they were worded. The following potential heads of claim emerged from the process which I undertook:

Discrimination

It was clear that a claim for discrimination on the disability ground was being advanced, and an alternative argument was made based on family status.

Harassment and/or Victimisation

It was contended that the repeated invitations to welfare meetings, including a further invitation issued after the present proceedings had been instituted, was wrongful and caused distress and upset to the Complainant based on her disability. My approach to this situation was to asses it by reference to two different causes of action provided for in the Acts: namely, Harassment and Victimisation.

Burden of Proof Applicable to All Claims

Section 85A of the Act makes specific provision in relation to the burden of proof in Discrimination Claims generally.

The Section provides as follows:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12E.L.R. 201, the Labour Court concluded that:

“a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”

The Labour Court has held in Hallinan v. Moy Valley ResourcesDEC-S2008-025 that to establish the relevant facts the Complainant must:

(a)    establish that he or she is covered by the protected ground;

(b)   Establish the specific treatment has allegedly taken place;

(c)    The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

The way in which Section 85 A has been applied has been further clarified. In Cork City Council v. McCarthy, Labour Court, EDA0821 had the following to say about the process:

“The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Dyflin Publications Ltd. v. Spasic, Labour Court, Case EDA0823 EDA0823, the foregoing passage was cited with approval.  In addition, the Court had regard to the judgement of Mummery LJ in the U.K. Court of Appeal in Madarassy v Nomura International plc,[2007] IRLR 246. In that case a provision similar to Section 85A was considered and the Court said that the provision:

“…does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.”

Approving of the foregoing passage, the Labour Court in Dyflin Publications held that

“…in considering if the burden of proof shifts the Court should consider any evidence adduced by the Respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the Complainant.”

In summary, the sequence of proof for the purposes of applying Section 85A is as follows:

1. The relevant facts which purportedly engage Section 85A must be established
2. Those facts having been established, the next question is whether those established facts give rise to a presumption of discrimination
3. Assuming that such a presumption of discrimination is raised, the onus then shifts to the Respondent to “prove the contrary” meaning to prove that there was no discrimination.  

Thus, the manner in which this section operates is of general application to all of the claims made – albeit that the necessary components of the individual claims is the subject of different statutory provisions as discussed in relation to each individual head of claim below. 

Findings Applicable to All Claims

Before considering the individual claims as identified, I shall firstly deal with some general allegations which were potentially applicable to all of the claims.

The Sending of Registered Letters to the Complainant

I am satisfied that the New Procedures involved sending registered letters to all relevant employees and that this was done in relation to Employee Number 1 in like manner as in the Complainant’s case. Registered letters did not issue to Employee number 2 but I am satisfied that there was a reason for this in that it was intended to send registered letters also to this employee, but this did not happen due to the resignation of that employee on the on the 7th of November 2023. Furthermore, it was agreed that once an objection was made to the use of registered letters as a form of communication, no further registered letters were sent and the means of communication requested by the Complainant, i.e. email was used thereafter. Accordingly, I find that the sending of registered letters to the Complainant in November 2023 is not a fact from which it may be presumed that there has been discrimination, and this finding is applicable to all of the claims made by the Complainant.

The Family Status Ground

Insofar as reliance was placed on the family status ground in the alternative, the Complainant suggested that she was not afforded due respect and support as a mother of a new baby attempting to return to work, the status being that of a person with a child as compared to another who does not have that status. This point was not advanced significantly at the hearing. Furthermore, the factual situation indicates that the Complainant was not and remains unfit and thus the issue of her returning does not yet arise. For this reason, I will not make findings on this issue in relation to any of the claims as the issue has not arisen at this time nor were particulars of this claim advanced by the Complainant.  

The failure to Notify the Complainant in Advance of the New Procedures

In her evidence the Complainant said that if information concerning or an explanation of the New Procedures regarding long term sick leave been given to her before she received the letters in November 2023, this would have helped with her anxiety. The Complainant’s representative reiterated this point in her submissions

The Respondent contended that all company changes would have been discussed with the Complainant in person prior to her return and at the informal welfare meeting suggested, which she declined three times. Furthermore, the complainant also requested that she did not want to be included in company updates, messages, what’s apps etc. while she was on leave. The proposed welfare meeting would have informed the complainant on the company changes and prepared her for her eventual return once she was fit and able to do so.

The proposition that the Respondent was reluctant or even prevented from notifying the Complainant about the New Procedures in writing because she did not want to be included in company updates, messages, what’s apps etc. while she was on leave, is not plausible since after all, the Respondent did end up writing to the Complainant anyway. The suggestion that the information was to be discussed when the welfare meeting took place, in circumstances where the Complainant was declining a welfare meeting, is a circular and self-serving argument which again is implausible.

I find that there was nothing to prevent the Respondent from communicating a briefing of some sort to the Complainant in writing before issuing registered letters inviting her to a welfare meeting. That said I do not think that this failure was discriminatory since the other employees concerned did not receive written notifications either. Neither do I deem this failure in and of itself to be a form of harassment or victimisation. However, I would conclude that the failing by the Respondent to give advance notice and an explanation of the steps that were to be taken did contribute to the Complainant’s stress and that this contribution to her stress was avoidable. Moreover the lack of clarity when the process began set in train a communication deficit which contributed significantly to the conflict that subsequently arose and this theme is analysed further on in this decision.

The Complainant’s Sick Certificate Prompting or Precipitating the Implementation of the New Procedures

At the resumed hearing on the 29th of November 2023, the Complainant’s representative submitted that contrary to a previous assertion by the Respondent, the review by the Respondent of its procedures was already underway prior to the retirement of the Senior Manager in late October 2023 and in relation to its timing it immediately followed the submission of a medical certificate by the Complainant on the 4th of October 2023. The allegation therefore was that the review was a specific reaction to the Complainant’s medical certificate which was cited as further evidence that the Complainant was singled out because of her specific disability.

The Respondent accepted that the review leading to the introduction of the New Procedures relating to long-term sick leave did commence before the retirement of the Senior Manager in that the reorganisation was required in anticipation of that event. Further the Respondent accepted that the Complainant’s sick certificate could have and probably did contribute to the commencement of the review at the time it occurred. However, it was contended that if the Complainant being on a four month sick leave period did trigger an immediate review, this did not constitute discrimination

The fact that the Complainant’s sick leave (in fact for three - rather than four months) may have triggered or prompted the review of procedures does not establish that the Complainant was singled out but rather that her sick leave, which was notified on the 4th of October 2023, brought the immediacy of the need to review procedures into sharper focus. I  conclude that the mere fact that the Complainant’s sick certificate operated as “a catalyst” (as the Complainant’s representative put it) which accelerated the introduction of the New Procedures does not of itself establish discrimination, harassment or victimisation, pursuant to Section 85A since even if the fact established does give rise to an inference of discrimination, I am satisfied that the Respondent has proven to the contrary. 

The Discrimination Claim

Discrimination is defined in Sections 6(1) and 6(2)

Where relevant to the present claim, the necessary enquiry concerns a comparison between two individuals such:

…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”)

As per Section 6 (2) paragraph (g)

As to what discrimination is, Section 6(1) states that discrimination: -

“shall be taken to occur where

(a) 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) (in this Act referred to as “discriminatory grounds”) which-

(i)            exists,

(ii)           existed but no longer exists;

(iii)          may exist in the future, or

(iv)          is imputed to the person concerned”

To establish a claim for discrimination the Complainant must establish that she has a disability and that she was treated less favourably than another person without that disability or with a different disability.

It was argued by the Complainant’s representative that she was treated differently because of her particular disability, that is to say post-natal depression which, it was contended is a different disability to that of the Comparator employees who were identified.

Having reviewed the available documentation and considered the parties respective submissions over the course of three hearing days, I find as follows:

The review of procedures for all employees of the Respondent who were on long-term sick leave (even if it was precipitated by the Complainant’s sick certificate) was not in itself discriminatory and the Respondent was entitled to review its procedures, particularly when it had not encountered long term sick leave issues in the past.

At the time when the procedures were implemented which was in November 2023, the only information then available to the Respondent was that the Complainant was suffering from post-natal depression. The other two employees on long term sick leave were affected respectively by “anxiety” and “clinical depression”.

The Complainant’s representative contended that the Complainant’s particular condition, which at that time in October 2023 was certified as “post-natal depression”, required a different approach and additional sensitivity to that which was applied to the other employees who did not suffer post-natal depression. In considering this submission I have restricted its application to the initial certification in October 2023 from the point of view of ascertaining whether the policy or its implementation - at that time - was discriminatory as against the Complainant. I have not taken into account the further complications relating to social anxiety as the Respondent was not aware of these complications when the letters inviting the Complainant to the first welfare meeting were issued. [These facts are however, relevant to the issue of harassment which is dealt with separately below.] As to whether post-natal depression is in effect a different disability to “anxiety” or “Clinical Depression” and that post-natal depression needed a different approach to anxiety or clinical depression in November 2023, there is clearly a medical distinction as between these respective diagnoses and the Respondent acknowledged this fact. However, the Respondent contended that from a HR/Legal prospective the conditions are all in the nature of mental health issues and that it was appropriate that they would all be and that they all were handled the same way.

Placing this argument into context, the Complainant contended that because she received an invitation to a welfare meeting far sooner than Employees 1 and 2, she was treated differently to those employees. She contended that she had a “different disability” to employees 1 and 2 and that therefore she was discriminated against within the meaning of Section 6(2) (g).

The New Procedures were intended to apply to all employees on long-term sick leave. The Complainant’s certificate which was submitted on the   4th   of October 2023, indicated that she would be unfit from the 18th October 2023 until the 18th  January 2024 - a period of three months. Even though the phrase “long term sick leave” was not specifically defined in the New Procedures, I find that it was reasonable for the Respondent to deem the period of three months, in respect of which the Complainant had been certified, as constituting “long term sick leave” even though she had not at that stage actually been absent on sick leave that long. In effect the Complainant argued that the procedures should not have been applied to her as soon as they were, and that the Respondent should have waited until she had actually been absent on sick leave for at least as long as the other employees. The implication of this argument is that the Complainant is seeking to imply a term into the procedures which was not there to begin with, rather than taking issue with a term which was already there. Moreover, it follows that the reason for the term which the Complainant seeks to be implied is related not to the nature of medical condition at all but rather to its duration, in the sense that, as of October 2022, the Complainant’s actual sick leave was of a shorter duration that that of Employees 1 and 2.  However that distinction does not relate to a different disability but rather to the length of the illness.  Thus, I cannot agree that the absence of a condition which required a certain length of actual certified absence rather than certified and anticipated absence is a fact from which it may be presumed that there has been discrimination.

The final and more general argument made by the Complainant is to the effect that regardless of the foregoing issues, anxiety and clinical depression are separate conditions to post-natal depression and the latter should be treated differently, i.e. with the right amount of sensitivity which might differ to the manner of treating more generalised conditions of anxiety or clinical depression. Applying this to the implementation of the procedures in November 2022, when invitations were issued to all three employees, I cannot see a justification for a different approach in the case of the Complainant and apart from the submission made that this should have been the case, no specific measures were identified that should or should not have been taken in the Complainant’s case. For this reason, I do not find that this general submission establishes a fact from from which it may be presumed that there has been discrimination - as at November 2023.

For all if the reasons set out above I find that the Complainant has not met the threshold of proof required to establish facts from which it may be presumed that there has been discrimination and this claim is not upheld.

The foregoing finding deals with the complaint of discrimination as stated with regard to the content and application of the New Procedures in November 2023. However, the situation changed in December 2023 when the Complainant made the Respondent aware of her particular circumstances - but this aspect of the case engages the other claim and is therefore dealt with under that heading.

The Harassment Claim

Harassment is defined at section 14A(7)(a)(i) as any “unwanted conduct related to any of the discriminatory grounds”

This unwanted conduct as per Section 14A(7)(b) “may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.

To constitute harassment the acts requests etcmust have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

The definition does not require a comparator, and the provision is engaged by “unwanted conduct related to” the relevant ground.

This imports a subjective test which focuses on the personal response of the individual to the conduct to which they have been subjected. The Labour Court in the case of Nail Zone Ltd v. A Worker  EDA1023 made the following statement in relation to the nature of harassment:  

“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts.”

Despite the subjective nature of the assessment the behaviour concerned must meet the threshold that it created an intimidating, hostile, degrading, humiliating or offensive environment for the person concerned.

In this case the Complainant had a disability insofar as her initial medical certificate submitted to the Respondent in October indicated post-natal depression as the relevant illness.  Thereafter, the report from her doctor, while detailing the background to the post-natal depression alsospecifically referenced that the Complainant was “experiencing severe social anxiety which is impairing her ability to [function] outside of the home. She also experienced a severe bout of anxiety when a meeting with her HR manager was proposed, and when she received written correspondence from her employer” This information was received by the Respondent in December 2023. 

In the present case it is not disputed that medical certification was provided by the Complainant. However, the Complainant contended that the certification provided by way of a detailed letter from her treating doctor should have been accepted by the Respondent without the necessity to take further action. Moreover, it was contended that such action as the Respondent took by repeatedly proposing welfare meetings with her was inappropriate, unnecessary and intimidating and that it constituted discrimination and harassment, on the grounds of disability.

In a submission dated the 8th of March 2024, the Complainant, referring to the registered letters of the 2nd and 24th of November 2023, put the issue in the following terms:

“This communication, while battling postnatal depression and anxiety, has caused me unwarranted stress and panic. It has hindered my recovery and caused me to lack the confidence to return to work. I feel as if the validity of my illness is being questioned repeatedly. I do not know the reason for this – if it is because postnatal depression isn't treated seriously by my manager, if it's mental health in general that isn't treated seriously, or if the fact that the childcare sector is short-staffed and my absence isn't convenient. Either way, I do not feel I have been treated the right way, and any claims that this communication is for my welfare aren't accurate. I haven't felt supported at all,

in fact, quite the opposite. “

In the letter of the 24th of November 2023 it appears to have been envisaged by the Respondent that the Complainant would consent to an approach by the Respondent to her nominated doctor for a report. As it transpired the Complainant procured the report herself. This report, though very informative, does not address some important issues such as the possible reasonable accommodation issues. However, this issue was a least referenced in general terms in the doctor’s previous letter of the 17th of November 2023 where it was stated in relation to the Complainant that‘any forms of support will be appreciated for her health [and] wellbeing.’

The Respondent was on express notice, having been so advised by the Complainant’s doctor in December 2023, that the Complainant was

”experiencing severe social anxiety which is impairing her ability to [function] outside of the home. She also experienced a severe bout of anxiety when a meeting with her HR manager was proposed.”

Despite this information, in February 2024, the Respondent wrote to the Complainant using the following wording:

“In your GP report your GP stated they can provide an update in 6 weeks and I am therefore writing to request your attendance at an informal welfare meeting”.

In her response to this letter (quoted more fully above) the Complainant stated:

“My GP did not say they would give an update in 6 weeks”.

A plain reading of the GP’s Report confirms that this is correct. At the end of the Report, the doctor offered to correspond directly with the Respondent stating

“I am happy to communicate with you in future should the need arise”.

This appears to have been misinterpreted by the Respondent as an undertaking to provide an update but the actual text stated that the doctor was willing to provide an update “should the need arise” - which is not the same thing. What is also clear is that no request was made to the Complainant or to her doctor to provide an update. Instead, she was merely requested to attend a welfare meeting.  

Instead of inviting her to a welfare meeting the Complainant’s permission could have been sought for direct contact with her doctor for a medical update at least. Indeed, at that stage the Respondent could have proceeded directly to organise a full independent occupational assessment. This could also have been organised by a written communication to the Complainant requesting her agreement to undergo the assessment, subject to and with the participation of her doctor.  None of these steps were taken and the email just sought a meeting even though the Respondent was on actual notice that as of December 2023 the Complainant had “experienced a severe bout of anxiety when a meeting with her HR manager was proposed “. 

This email was followed by the institution of the present claim by the Complainant in February 2024. After the institution of the present claim a third invitation to a welfare meeting was issued on the 3rd of April 2024. There was no request for an update and no reference was made to medical information although the Complainant was still certified until the 15th of April 2024. The purpose of the meeting was as before namely that “The purpose of this meeting as previously stated is to establish the nature and extent of your illness, how long it’s likely to be before you are well enough to return to work and what arrangements we might need to make to ensure your safety upon your return.”. When the proposal for the third meeting was made in that letter, the nature of Complainant’s illness (post-natal depression and severe social anxiety) was already made clear in the medical report of December 2023 and in the certificates provided, the last of which was still current. The Complainant could not have been expected personally to know how long it was likely to be before she could return to work as this could only be the subject matter of medical advice. As regards the third item for discussion namely what arrangements the Respondent might have needed to make to ensure the Complainant’s safety on her return, this too was beyond the Complainant’s knowledge, and she had no expertise whatsoever in this area. In such circumstances there was no need for a “welfare meeting”.  Even the use of this phrase was unhelpful as the issues for discussion went beyond enquiring after the Complainant’s welfare and must surely have been more focussed on medical prognosis and reasonable accommodation issues.  Moreover, it was or ought to have been apparent that the Complainant was reluctant to engage in a face-to-face meeting and even if that were not so, she would not have personally been in a position to provide any response to the issues which were to be discussed, beyond those already provided. Against this backdrop were the Complainant’s communications including her objection to the Second Invitation as submitted in support of the present claim and copied to the Respondent.

It is clear that the Complainant had a serious objection to the second welfare meeting proposal such that she lodged the present claim after it was issued and subsequently shortly thereafter provided further submissions. Despite all of the foregoing, the Respondent persisted with its requirement for a “welfare meeting” and went as far as to propose a third meeting date by email letter to the Complainant on the 3rd of April 2024. The Complainant not only declined this proposal but forwarded it to the WRC in support of the present complaint. At that date the Complainant was still certified until the 15th of April 2024 by a medical certificate which was submitted on the 15th January 2024.

This raises the question as to why a meeting was sought rather than some other step and this is a significant question since it is the repeated insistence on welfare meetings which is at the heart of the Complainant’s complaint of harassment.

Given the fact that the Complainant’s doctor was not an occupational specialist, a lawyer or HR. Consultant - or even if he/she was all three, he/she was not independent but rather the treating doctor - that doctor could not be expected to provide expert advice regarding reasonable accommodation or for that matter any area of law or HR practice. A fortiori the same was true of the Complainant who was a childcare worker with no medical, legal or HR expertise. What was clearly and obviously required was an independent medical/occupational referral to an expert in both medicine and HR practice (if not law) relating to reasonable accommodation as well as safety health and welfare. It was clear that the Complainant’s doctor was willing to engage with the employer and in the normal course of events any independent occupational physician would always consult with an employee’s treating doctor as a matter of course. This could have been arranged and had it been arranged there would have been no immediate necessity to involve the Complainant at all, other than to request that she give consent for her doctor to consult with an independent doctor appointed by the Respondent. This is not what the Respondent chose to suggest in its letter to the Complainant of the 24th of February 2024. Instead, she was again requested to attend a welfare meeting, and this was so despite the fact that she was on certified sick leave and that she had been diagnosed with severe social anxiety.

A third invitation was then issued after the present claim was instituted. At that date the Complainant was still certified until the 15th of April 2024 by a medical certificate which was submitted on the 15th of January 2024.

As to why a further welfare meeting as opposed to any other step was chosen in February 2024, the Respondent’s Manager in her evidence said that:

She knew the Complainant and the background to her illness from the certificates which had been submitted. She also knew the Complainant personally and that she is the type of person who likes to know what is happening. As to why an independent medical referral was not organised the Manager said that this was because she had not had a chance to communicate with the Complainant herself. She said that she did not know how sick the Complainant was until the telephone call with her partner [in November 2023]. The Manager said that she needed to talk to the Complainant. Following this evidence, in a submission, the Respondent’s representative said that an occupational referral could have been made but the Respondent had taken the view that it was better to have a discussion with the Complainant first.

I am not satisfied that the evidence given or the submissions made provide a rational or coherent justification for the repeated insistence on a meeting with this particular employee. The Respondent was on full notice of the delicate state of the Complainant’s health, and this was clearly set out in the Medical Report. She provided a medical basis for her refusal to attend the first welfare meeting, and that medical evidence documented a history of depression and severe social anxiety. She remained on certified sick leave when the subsequent invitations were issued. In such circumstances it is highly questionable whether any useful purpose could have been served by a meeting with the Complainant in the absence of further and much more detailed information including certification as to her fitness to engage. Beyond the question of fitness to engage there was an array of issues which needed to be considered including: medical diagnosis, medical prognosis, consideration of accommodation measures (including possible costings) and/or interim measures and, not least, the necessity for the Respondent to be able to procure regular service from its employees in order to maintain the efficiency of its operational services which latter issue may ultimately have led to a process whereby the Complainant would need to replaced - temporarily or otherwise. These are all serious and complex issues, and it must or should have been obvious to the Respondent that they could never have been dealt with without the benefit of further medical and/or occupational information and advice which was not then available. Instead of taking steps to initiate a process of gathering information before a more substantive meeting, the Respondent wanted to go ahead with a meeting despite the Complainant’s clear reluctance to engage and with no prospect of the meeting generating a meaningful outcome.

The effect of the repeated invitations on the Complainant was that she perceived them as attempts to intimidate her or to coerce her to engage when she was unwilling to do so and was on certified sick leave. She also had the perception that she was not being believed. Such perceptions and their consequent effects on the Complainant, when viewed by strictly objective standards, might be viewed as disproportionate. However, the definition of harassment, as pointed out by the Labour Court, has a subjective element insofar as the personal circumstances of the Complainant are relevant. In this case those circumstances were that the Complainant’s doctor had initially certified her as unfit to engage in the first proposed welfare meeting. In a telephone call with the Complainant’s partner the Respondent was made aware that the Complainant was unhappy with the correspondence received when she was on sick leave and that she continued to be unwell. The Respondent was then provided with a Medical Report which expressly stated that the Complainant had been diagnosed with and was being treated for depression and severe social anxiety. During this entire time, up to and including when the Second and Third welfare meetings were proposed, the Complainant was and continued to be certified unfit due to post-natal depression. 

The Respondent’s submission dated the 24th of July 2024 (at paragraph 12 (d)) made the following statement: “A welfare check cannot be a hostile act or a form of harassment, it is a way to check in with an employee and ensure that they are feeling safe and supported to return to work.” I do not accept this submission for two reasons. Firstly, the welfare check was perceived as hostile by the Complainant. Section 14A as pointed out by the Labour Court in the case of Nail Zone Ltd v. A Worker necessarily involves an element of subjectivity and in the Complainant’s case her perception of the welfare checks was explicitly conveyed in writing to the Respondent including by way of the institution of the present proceedings. I find that the general statement that a welfare check cannot be a hostile act is incorrect as in this case it was subjectively perceived as such and that perception, I find, was justified in all of the circumstances. The second part of the Respondent’s submission which I do not accept is the characterisation of the purpose of the welfare meeting as being limited to checking in with the employee to ensure that she was feeling safe and supported to return to work. For the reasons detailed above, I find that the welfare meetings proposed in the present case had a much wider agenda probably including both a reasonable accommodation process and a potential staffing issue presented by the Complainant’s extended absence. I am fortified in this view by the statement made in the Respondent’s submission dated the 5th of April 2024 (at paragraph 20), where it is stated that the purpose of the contact with the Complainant (as was explained to her partner/representative on the telephone on the 27th of November 2023) was to  allow the Respondent to assess the fitness of the Complainant to return to work in the future and to assist the Respondent in facilitating this return by making any accommodations the Complainant may have needed.

In this case if the main or sole purpose of the meeting was to check on the welfare of the Complainant, i.e. to check how she was, the Respondent was already aware that she was not well and was unfit for work or to return to work, which made a ‘welfare check’ (in the sense of an enquiry into her well-being alone), unnecessary in the circumstances.  

My analysis of the evidence leads me to the conclusion that the Respondent was itself unclear as to what was meant by the term “welfare meeting”. That term was never defined clearly when the invitations to those meetings were issued. I have already found that the lack of clarity when the process relating to the New Procedures began set in train a communication deficit which contributed significantly to the conflict that subsequently arose. This being so, despite the finding that that lack of clarity did not in itself constitute harassment I do find that it did place the Respondent in a situation where unintentional harassment arising from the rigid and inflexible application of those procedures was the unintended consequence.  

For the reasons as set out above I find as follows:

1. After the first invitation to a welfare meeting had been declined and following the receipt of the medical report in December 2023, the Respondent was on actual notice of:
   1. the Complainant’s particular circumstances,
   2. that the Complainant’s particular disability was not only post-natal depression but also severe social anxiety.
   3. that the Complainant had “experienced a severe bout of anxiety when a meeting with her HR manager was proposed “.
2. The Respondent was on actual written notice that the Complainant was dissatisfied and took exception to the repeated invitations to welfare meetings in her particular circumstances.  and the reasons for her repeated objections were communicated clearly in writing.
3. The repeated invitations to welfare meetings constituted unwanted conduct.
4. That unwanted conduct, given the particular circumstances, was such that it had the effect (if not the purpose) of violating the Complainant’s dignity and created an intimidating, hostile, degrading, humiliating or offensive environment for her.  

Having assessed all of the available evidence and submissions I conclude that the Complainant has established facts from which it may be presumed that there has been discrimination against her in the form of harassment on the ground of disability and further that the Respondent has failed to adduce evidence sufficient to prove the contrary. My conclusion is that the complaint of harassment is well-founded.

Whether Victimisation Occurred

I have considered whether the facts as found in relation to the Claim for harassment might also establish a claim for victimisation, as provided for in Section 74 of the Act.

Section 74 subsection (2) of the Acts defines victimisation as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

Victimisation is a stand-alone cause of action which requires specific proofs in that there must be evidence that the dismissal or (as in the present case) the alleged adverse treatment occurred as a reaction to any of the situations listed at (a) to (g) of Section 74 (2). 

In the present case the Complainant made a complaint of discrimination when she instituted the present proceedings before the WRC, and this is clearly a protected action as envisaged by Section 74 (2). However thereafter two issues arise. Firstly, what happened to the Complainant, and can this be considered adverse treatment? Secondly, if what occurred was adverse treatment, did it arise “as a reaction to” the protected act of making the present claim?

In the present case there was a repetition of the invitation to a welfare meeting to which the Complainant had already objected, which objection was already amongst the issues canvassed in the WRC Complaint. In such circumstances it is arguable that the third invitation, which issued after the claim was instituted, constituted adverse treatment insofar as the conduct challenged in the proceeding was repeated notwithstanding the institution of the proceedings. On the other hand, is the Respondent’s contention that it was following advice at all times and was attempting to apply its procedures equally to all of its employees. 

Harassment and victimisation are separate stand-alone causes of action each of which is dependent on different proofs to establish liability on the part of an employer.  One similarity between them is the fact that neither requires a comparator as the focus is on the relevant characteristic of the employee concerned and only that employee. Neither cause of action requires proof of intent either to harass or to victimise. However, whereas harassment looks to the “purpose or effect” of the offending conduct, victimisation examines whether the adverse is visited upon the employee “as a reaction to” the protected act in question. It can thus be seen that in the case of harassment either the purpose or the effect can be considered so that even if the “purpose” criterion is not fulfilled regard must still be had to the “effect” on the employee concerned. By contrast, as regards victimisation; even though there is no express mention of motivation or intention in Section 74, the Labour Court in the case of ESB International v Mumtaz  EDA1935,has indicated that the process of assessing liability under this provision:

“involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent”.

Applying the foregoing to the facts of the present case I find that the action of the Respondent in relation to the repeated invitations to welfare meetings was not a deliberate attempt either to harass or to victimise the Complainant. In this regard I accept the submission of the Respondent that it was attempting to apply the New Procedures equally to all affected employees and that it was doing so following advice. In such circumstances I find that there is insufficient evidence to establish a motive or reason for this conduct associated with a “reaction to” to the institution of the present claim and for this reason I find that the Respondent did not victimise the Complainant within the meaning of Section 74.  However in the light of the fact that harassment can be assessed by reference to the “effect” on the conduct complained of, I have found that this particular Complainant was affected by the Respondents conduct (arising from the Second as well as the Third Invitations to welfare meetings) in the manner already discussed and that harassment – albeit that the same was not intentional or done on purpose – did occur within the meaning of Section 14A.

Conclusions and Redress

The decision which I have made that the Respondent did not discriminate against the Complainant arises primarily from the fact that the relevant employees (the Complainant and the Comparators), were not, in all of the circumstances, treated differently when the procedures in relation to long term sick leave were devised and initially implemented. However, when – albeit advisedly and in good faith – the Respondent attempted to continue the application of those procedures to this particular Complainant, without taking a step back and considering adapting those procedures to meet her individual circumstances, the Respondent found itself unwittingly perpetrating a situation which, as found, constituted harassment of the Complainant by reference to her particular circumstances.

Against this backdrop I must now turn to the assessment of the quantum of compensation to be awarded to the Complainant. In doing so I take account of the fact that the consequences of the Respondent’s actions (if not the actions themselves) were unintended. Those consequences however were avoidable if the Complainant’s sick leave had been handled better and had they been avoided, the Complainant would not have suffered the distress of which she complains. Moreover, it was not suggested, nor could it fairly be said that the Complainant contributed to what occurred or that she was otherwise blameworthy in any way. 

Taking account of the above factors and being mindful also of the considerable distress sustained by the Complainant arising from the breach as found of her statutory rights , I deem the sum of €32,240 to be (as directed by Section 82) “appropriate in the circumstances of the particular case”. For the avoidance of doubt, although this award is equivalent to a year’s remuneration, the award made is compensation for breach of the Complainant’s statutory rights as distinct from remuneration.  The Respondent is directed to pay the said sum to the Complainant.  

CA-00061726-001

The Respondent did not discriminate against or victimise the Complainant.

The Respondent harassed the Complainant on the disability ground and is directed to pay to the Complainant the sum of €32,240 by way of non-remuneration-based compensation for breach of her statutory rights.

Employment Equality Acts 1998-2015 – Sections (2) (6), (8), (14A), (22), (74), (82),  (85A) – Burden of Proof - Teresa Mitchell v Southern Health Board (Cork University Hospital) – Hallinan v. Moy Valley ResourcesDEC-S2008-025 -- Cork City Council v. McCarthy, Labour Court, EDA0821 - Dyflin Publications Ltd. v. Spasic EDA0823 - Madarassy v Nomura International plc, [2007] IRLR 246 – Discrimination – Welfare Meeting – Person of Different Disability - Harassment – Nail Zone Ltd v. A Worker  EDA1023 – Unwanted Conduct  -   Victimisation - Adverse Treatment – whether adverse treatment “as a reaction to”   Protected Act