Complainant

Respondent

Parties

Mary  Roche

Kilkenny And Carlow Education And Training Board

Representatives

Sean Ormonde & Co., Solicitors

 Ibec

Act

Complaint Reference No.

Date of Receipt

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

CA-00059520-001

20/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00059520-002

20/10/2023

The Complainant presented her complaint to the WRC on 20 October 2023. She claims to have been discriminated against on the disability ground contrary to the Employment Equality Acts, 1998-2015. The Complainant cites the most recent date of discrimination as 3 October 2023. She further claims to have been penalised in circumstances amounting to victimisation contrary to the Employment Equality Acts, 1998-2015. The Complainant also presented a complaint under the Payment of Wages Act, 1991 alleging an unlawful deduction. The Respondent disputes all claims.

Preliminary Matter

The Complainant is relying on a ‘continuum of discrimination’ under s 77 of the Employment Equality Acts, 1998-2015.

Oral testimony of the Complainant (under oath)

The Complainant was employed as a teacher from 1 March 2006. The Complainant is not a qualified teacher. In September 2022 she agreed to work a 35-hour week consisting of 15 hours teaching (paid at €46.19 per hour) and 20 hours resource work (paid at €17 per hour). The BTEI conversion was agreed in 2016 and the Complainant opted for the ‘unqualified teacher’ option. This meant that she would not be paid for teaching hours during the summer, and she would only be paid for resource work actually performed during the summer. A different hourly rate of pay applies to teaching and resource work. The Complainant was verbally advised that efforts would be made by Mr O’Neill, Adult Education Officer, to have her contract converted to an ‘Adult Educator’ Contract as this was more in line with the job she was actually performing. This would allow the Complainant to be paid for teaching hours during the summer.

On 12 January 2023 the Complainant was diagnosed with breast cancer. She immediately advised her line manager, Ms Jackman, of the illness as she was scheduled for surgery the following week. She asked if she could work from home to accommodate her treatment. Ms Jackman discussed it with Ms Martha Bolger, Director of Further Education and Training, and it was agreed that the Complainant could work from home following her surgery. The Complainant resumed working as normal, albeit from home, within days of the surgery. She did not require a medical certificate as her absence did not exceed 3 days.  

No issues arose until March 2023 when Ms Jackman (who reported into Mr O’Neill) advised the Complainant that a general communication had been issued which required all staff to return to working on site from 1 April 2023. The Complainant contacted Mr O’Neill to request that she be permitted to continue to work from home as she was starting chemotherapy and did not want to put herself at risk of infection. The Complainant outlined that she was fully fit to work from home and would be finished chemotherapy before 10am on the assigned day/s of the week. It was very important to her to continue working as normal (albeit from home) for her mental health. Mr O’Neill refused due to the organisational requirement for all staff to return on-site; however, he offered the Complainant her own office. This was not suitable to the Complainant as she would have to share toilet facilities. This put her health at risk given she was receiving chemotherapy. The Complainant outlined that while she was working from home, and since her diagnosis, she went into the office on several Fridays but this was because there were few staff or learners in the building on Fridays. The Complainant spoke with a member of the HR team who advised her that if she could not come into the office, she would have to apply for Critical Illness Provision (CIP). The Complainant felt that, as working from home was no longer an option, she had no choice but to apply for CIP. The Complainant attended her consultant and obtained a medical certificate for the purposes of applying for this cover. She then commenced chemotherapy on 31 March 2023. The Complainant outlined that she had several reviews with Medmark. She told them that she was fit to work from home but this was not reflected in the medical reports. The Complainant did not ask her doctor for a letter/medical report to say she was fit to work from home as the Respondent never approached her about reasonable accommodation at any time. In any event Mr O’Neill knew she wanted to continue working from home. Further, her medical reports provided that she was ‘unfit to attend work’ rather than ‘unfit for work’ and so these medical certificates were not inconsistent with her fitness to work from home.

The Complainant outlined that CIP provides for six months full pay and six months half pay. The Complainant understood this to mean that she would receive full pay for 6 months at the rate of pay she was on at the time she went on sick leave (i.e., 15 hours at the teaching rate and 20 hours at the lower resource rate). However, while she did receive this amount from 1 April 2023 and during Easter and mid-term breaks, the amount was reduced on 1 June 2023 for the summer non-term months to 24 hours at the lower resource rate. Mr O’Neill explained to her that 24 hours was the average resource hours worked by her over the previous two summers. The Complainant submitted that she should have continued on the rate of pay applying at the time she commenced leave (i.e., 15 hours at the teaching rate and 20 hours at the lower resource rate); and that 24 hours pay was certainly incorrect as she had been promised 35 hours at the lower resource rate during the summer months. The Complainant outlined that she was travelling to Waterford for radium and felt she had no option but to accept the 24 hours pay in order to pay her bills. The Complainant confirmed to the hearing that she did not raise a formal grievance. The payment of 15 hours at the teaching rate and 20 hours at the lower resource rate was resumed at the end of the summer break.

The Complainant submitted that she was required to put in a time sheet every month and chase Mr O’Neill to sign off on same to ensure she was paid under CIP. While the payment was always received, it was very stressful having to remind Mr O’Neill to sign off on the hours before the payroll deadline. The Complainant outlined that she should not have had to repeatedly check and remind Mr O’Neill to approve the hours. The Complainant opened emails of various dates sent to the Co-ordinator and Mr O’Neill outlining the stress that it was causing to her having to request approval of her hours, in addition to the delay in approving her contract on the system so she could input her hours.  The Complainant also complained to HR on 14 September 2023 and HR advised her to give her PIN details so the Respondent could submit the hours on her behalf. The Complainant refused to do so as she felt that sharing her PIN was a breach of GDPR.

The Complainant submitted that the Adult Educator Contract was not approved either despite being reassured it was being looked at, and when she queried it with Ms Bolger, she was told she had “shot herself in the foot” by raising the issue with HR. The Complainant applied for the role of Co-ordinator in 2023. The Complainant was interviewed for the role but was informed in August 2023, that she unsuccessful. She was told by a colleague that she was wasting her time as someone else had already gotten the job. The Complainant submitted that her non-selection for the role was an act of discrimination on grounds of disability and an act of victimisation contrary to the Employment Equality Acts. The Complainant did not know if the person who got the job was more qualified than her or if she has a different disability or no disability at all.

In cross-examination the Complainant confirmed she attended on site on several Fridays between January and March 2023, but added that there were no learners on site and she did not have to meet with others. The Complainant agreed she was offered an office with a separate entrance and exit, but added she declined this because she would have to meet other people and that was not suitable as she was having chemotherapy. The Complainant agreed that it was reasonable for Mr O’Neill to believe that the offer of a separate office would meet the Complainant’s needs especially since she had been attending the offices on Fridays. The Complainant accepted that she never provided a medical certificate stating she could only work from home, but added that this was because she had been working from home since January 2023 without issue and then in March ‘Ms L’ in HR confirmed that as there was now a requirement for all staff to return to the office full-time, the only option open to her was to apply for CIP if she could not return to the office.

The Complainant accepted that she had submitted a total of 15 medical certificates and each one of them stated she was unfit for work. The Complainant further accepted that none of the Medmark reports said anything other than she was unfit for work. The Complainant agreed that 20 medical reports in total were provided to the Respondent and not one of them requested reasonable accommodation or working from home. The Complainant accepted that the letter from her GP dated March 2024, stating that the Complainant could have worked from home, was a retrospective opinion and that the Respondent was never advised by her GP in 2023 or the following months of the Complainant’s fitness to work from home. The Complainant added that she presumed there was nothing she could do to challenge the decision of the Respondent in March 2023 to require all staff to work on site. Various Medmark reports were opened to the hearing, one of which indicated “unfit for work or modified duties”. The Complainant confirmed that she accepted that each report stated that she was unfit for work.  

The Complainant accepted that teaching hours and the teaching rate of pay is not guaranteed during summer months and that she was never paid a teacher’s rate during the summer months. The Complainant accepted the figures calculated by the Respondent (on the basis of the verbal promise of 35 resource hours during the summer) were the correct figures but added that she felt the wording of CIP should be read as guaranteeing the rate of pay at the time the employee goes out sick for the purposes of the ‘six months full pay’. The Complainant accepted that had she been fit to work during the summer of 2023 that she would have only received 35 hours pay at the lower resource rate.

It was put to the Complainant that the burden of inputting her hours could have been removed from her if she had agreed to share the PIN. The Complainant responded that the PIN was personal to her and so she was not handing it over, but she agreed that there was no sensitive personal data that could be accessed by giving her PIN to another member of staff. It was put to the Complainant that she could have simply changed the PIN on her return to work.

It was put to the Complainant that there was no reason for her to repeatedly check if the hours had been approved as this could be done by Mr O’Neill at any time prior to the cutoff date and time. The Complainant accepted that Mr O’Neill had to wait for several other staff to submit hours before approving all hours for payment. The Complainant agreed that there was never a late payment.

The Complainant accepted that she opted for the ‘unqualified teacher’ option at the time of the conversion and agreed that she was told this decision was final and could not be changed.

It was put to the Complainant that any reference to another person securing the role of Co-ordinator was nothing other than office gossip. The Complainant agreed that the person who stated this was not at the hearing to give evidence with respect to same. The Complainant accepted that Ms Bolger offered to give her feedback on her performance at the interview but that she did not take her up on that offer.

Oral testimony of Ms Jackman (under oath)

Ms Jackman was the Complainant’s line manager until Ms Jackman resigned in May 2023. She described the Complainant as a very hard worker. The Complainant told Ms Jackman of her illness and Ms Jackman sought the approval of Ms Boger and Mr O’Neill to allow the Complainant to work from home. Ms Bolger approved the Complainant’s request to work from home but she said HR should not be formally informed as they would not authorise it. Ms Jackman submitted that ad hoc agreements were made regarding working from home for various employees but only if it suited senior management to authorise it. Ms Jackman outlined that Mr O’Neill was trying to sort the Complainant out with an office of her own but because of the toilet facilities this option was not agreeable to the Complainant. Mr O’Neill was aware at all times of the Complainant’s need to work from home. Ms Jackman submitted that there was no operational reason why the Complainant could not have been accommodated to work from home. Ms Jackman opened an email dated 15 June 2023 in which she outlined to HR a verbal agreement between her and Mr O’Neill to provide 35 hours resource work to the Complainant during summer months. In cross-examination, Ms Jackman accepted that she never received a medical cert confirming the Complainant was fit to work from home. Ms Jackman accepted that Mr O’Neill was trying to facilitate the Complainant even after her application for CIP.

Closing Submissions

It was submitted on behalf of the Complainant that the Complainant has a recognised disability for the purposes of the Act and that the Complainant was treated less favourably because of that disability. The Complainant has established a prima facie case of discrimination. The Complainant is relying on the a ‘continuum of discrimination’ under s 77 of the Employment Equality Acts, 1998-2015. A hypothetical comparator can be used. The Complainant was not reasonably accommodated. The Respondent seeks to rely on the provision of an office space as reasonable accommodation, but this was not suitable to the Complainant because she would have to share toilet facilities. The Complainant was presented with a choice between an unsafe working environment (coming into the office) or CIP: she took the less detrimental choice. The Complainant was forced to take sick leave she would not have been required to take had reasonable accommodation been put in place for to support her. There was no operational reason why the Complainant could not be facilitated to work from home. At no time did management or HR tell the Complainant to get a letter from her GP requesting reasonable accommodation in the form of working from home. Instead, she was led to believe that it was a straight ‘no’ to working from home. Further, the Complainant was over looked for the role of Co-ordinator in August 2023 despite the fact that she was more experienced. The decision not to offer the Complainant the role of Co-ordinator was directly related to her disability.

In relation to the victimisation complaint, it was submitted that the Complainant consistently raised concerns both informally and formally regarding timesheets and those concerns were ignored. The Complainant was faced with a constant battle of having to chase up time sheets to ensure she was paid causing the Complainant unnecessary stress at a time she was fighting cancer. The Complainant submitted that her non-selection for the role was not only an act of discrimination on grounds of disability, but also an act of victimisation contrary to the Employment Equality Acts.

In relation to the payment of wages complaint, the Complainant should be paid the rate she was on when she went on sick leave for the first six months. The Respondent first denied a verbal commitment was given in relation to a guarantee of 35 resource hours during summer months, and only conceded that such a promise was made when the complaint was presented to the WRC. The manner in which the Complainant’s sick pay was calculated was disingenuous and discriminatory. The Complainant representative summarised the main points in their written submission and the law and case law relevant to the complaints.

Preliminary Matter

It was submitted on behalf of the Respondent that as the Complainant’s complaint to the WRC was presented on 20 October 2023, the cognisable period for the complaint is 21 April 2023 to 20 October 2023. The WRC can only consider maters that have occurred in the cognisable period. Any other complaint relating to a period outside of the cognisable period is out of time. In a letter sent to HR over five weeks before the presentation of her complaint to the WRC, the Complainant outlines: “Having now sought legal advice, my solicitor has advised me to write to HR . . . ”. The Complainant was in receipt of legal advice. It is submitted that ignorance of the law is no excuse.

Oral testimony of Mr O’Neill (under oath)

Mr O’Neill learned of the Complainant’s illness from Ms Jackman and agreed in January 2023 that the Complainant could work from home. On 13 March 2023 a direction came from senior management that all staff were to return to working from the office with effect from 1 April 2023. Mr O’Neill outlined that the Complainant did not speak with him directly about working from home and that she often came into the office on a Friday. Mr O’Neill was aware that the requirement for staff to return to the office would be an issue for the Complainant and this is why he tried to find a suitable office for her. Two offices were proposed as being suitable but Ms Jackman advised Mr O’Neill that one of these offices were unsuitable to her. At no time did he instruct Ms Jackman to apply for CIP or to take sick leave. Mr O’Neill stated that it was lamented that she wasn’t in and he and Ms Bolger discussed waiting to see what the medical certificates would say.

Mr O’Neill submitted that it is completely impractical to approve working hours in the system until all staff have inputted their hours, and that he had explained this to the Complainant when she expressed her dissatisfaction at having to remind him to approve her hours. The inconvenience for the Complainant of inputting her hours while on sick leave could have been alleviated if she shared her PIN. There were no GDPR concerns in her doing this. Mr O’Neill submitted that he has never missed the payroll deadline.

In cross-examination Mr O’Neill confirmed that there were no issues with the Complainant’s performance and that the vast majority of her duties could be completed remotely. Mr O’Neill confirmed he was aware that the Complainant wished to work from home but stated at the time there was no working from home policy in place. Where a request is made by a doctor to facilitate working from home, this is considered by Ms Bolger. Ms Bolger would then speak to HR. Mr O’Neill confirmed that he did not speak with HR.  He added that he did not receive a request for reasonable accommodation, and he had no idea how long the Complainant would be certified as unfit for work. Mr O’Neill did not agree that a medical certificate stating ‘unfit to attend for work’ does not equate to ‘unfit for work’. In response to the question as to why he did not request clarity as to what further accommodation the Complainant required, Mr O’Neill said he did not do so because at this stage the Complainant was out on sick leave and no medical certificate stated that the Complainant was fit to work from home.

Oral testimony of Ms Bolger (under oath)

Ms Bolger confirmed that the Complainant selected the ‘unqualified teacher’ option at the time of the conversion process. She outlined that there is a hierarchical process but not seniority other than for qualified teachers for sequencing purposes. Ms Bolger outlined that she was trying to push boundaries to get the Adult Educator Contract for the Complainant, but she did not direct the Complainant not to sign the ‘unqualified teacher’ contract. She did not say that the Complainant had “shot herself in the foot” by raising the issue with HR, but rather that she may have gone too far in doing so as the request could now not be dealt with informally. 

Ms Bolger outlined that at no time did she receive, either from the Complainant’s doctors or Medmark, a request for reasonable accommodation for the Complainant. While she did facilitate working from home initially, this was not something that could continue indefinitely. The request to return to the office effective 1 April 2023 impacted three persons including the Complainant. The Complainant was not forced to return to the office. Ms Bolger submitted that she was aware Mr O’Neill was trying to facilitate the Complainant with an office of her own.

Ms Bolger outlined that she was on the interview panel for the Co-ordinator role. Twelve persons applied for the role and three were short-listed including the Complainant. Ms Bolger outlined the selection process which included training for all interviewers. The Complainant came third in the competition. Ms Bolger called her on 22 August 2023 to let her know that she was not successful. Written confirmation issued on 23 August 2023. The Complainant stated she felt she did not do a good interview.  Ms Bolger extended the offer of feedback but the Complainant did not avail of same.

Ms Bolger outlined that when a person is absent, they can input their own hours on the system, or someone else can do that for them.

Ms Bolger outlined that there is currently one person working from home on the basis of a medical request for reasonable accommodation in relation to same.

In cross-examination, Ms Bolger confirmed that there was no working from home policy in place at the time and a request to work from home was considered on a case-by-case basis. She added that the Complainant’s request to work from home was merely a verbal request unsupported by any medical opinion. She facilitated it on a temporary basis until they knew the longer-term prognosis for the Complainant. Ms Bolger agreed that, with the benefit of hindsight, the matter could have been handled better. It was put to Ms Bolger that she could have given guidance to the Complainant and instructed her to get a medical certificate requesting working from home to which Ms Bolger responded: “I suppose so”. It was put to Ms Bolger that the Complainant was never offered a second office (unit 6). Ms Bolger said she could not answer that question. Ms Bolger said she could see no contradiction between being certified as unfit for work and the requirement to input hours on the system for payment purposes, as other staff could have done this for the Complainant had she let them have her PIN.

Oral testimony of Ms McGrath (under oath)

Ms McGrath was informed by Ms Bolger in March 2023 that the Complainant had been diagnosed with cancer. She asked if the Complainant was absent on sick leave and Ms Bolger advised that the Complainant was still working. Ms McGrath explained the process for approval of CIP. HR approval is not required. On 27 April 2023 HR were informed that the Complainant had been approved for CIP. The report stated that the Complainant was not fit for work or for modified duties. CIP would not have been approved if the Complainant was fit for modified duties. The report stated that the Complainant would not be reviewed for four months which indicated to Ms McGrath that the Complainant’s condition was serious.

On 14 September 2023 Ms McGrath received a letter from the Complainant in which the Complainant raised several concerns. Ms McGrath spoke to Ms O’Keefe to see what could be done for the Complainant regarding the inputting of hours.

The Complainant was never certified as fit to work and therefore working from home would not be considered by HR. HR are accustomed to receiving Medmark reports, which would frequently make recommendations regarding reasonable accommodation. None of the Medmark reports in relation to the Complainant recommended reasonable accommodation. HR do not go against a Medmark report. Medical certificates from the Complainant’s GP go directly to HR and at no time did the Complainant’s GP recommend reasonable accommodation on behalf of the Complainant. Had the Complainant requested working from home, this request would have been sent to Medmark for consideration. HR were not aware of the Complainant’s desire to work from home.

The Respondent introduced a blended working policy in March 2024 following the recommendation of an interim group set up to look at this.

The rate of pay an employee is entitled to under CIP is the rate of pay they are entitled to at the time they are absent. As the Complainant would have received the resource rate from 1 June 2023 until September 2023 it was correct to reduce her pay accordingly.

In cross-examination, Ms McGrath stated that she did not regard the letter of September 2023 as a complaint but the raising of concerns, and therefore she did not refer the Complainant to the grievance procedure. The approach of HR is to informally resolve issues where possible without recourse to the formal grievance procedure. The letter of September 2023 was the first time an issue in relation to the Complainant’s absence had been presented to HR. HR was not aware of the offer of a separate office to the Complainant or any concerns in relation to same and local management were free to resolve those issues themselves. HR did not look behind the medical reports issued by Medmark. Ms McGrath denied it was the responsibility of the Respondent to request clarification from the Complainant’s GP as to whether the Complainant required reasonable accommodation. Rather, it is the responsibility of the employee to request reasonable accommodation and to provide supporting medical documentation.

Ms McGrath denied that the Complainant was treated any differently to any other non-qualified teacher with regard to her pay. All unqualified teachers do not qualify for payment for teaching hours during the summer. The commitment to pay for 24 hours was a good will gesture and was based on an average of the hours worked over the previous two summers. HR were not aware of a verbal commitment made by local management to provide 35 hours at the resource rate to the Complainant over the summer months, but the Respondent is prepared to deliver on that promise and reimburse the Complainant for the differential between 35 hours promised and the 24 hours actually paid.

Closing Submission

The Respondent representative summarised the main points in their submission and the relevant law and case law relating to the complaints, including its preliminary point on certain complaints being outside of the cognisable period and therefore statute barred. The Respondent refutes all allegations of unlawful discrimination on the ground of disability and refutes the claim of victimisation. The Complainant was certified as unfit for work from 27 March 2023 and has remained on sick leave since that date. Every medical certificate and occupational health report has consistently held that the Complainant is not fit for work. It was therefore not possible to provide reasonable accommodation. The Complainant was offered an office to herself which she did not accept. The Complainant has failed to establish a prima facie case of discrimination. Further no details of a comparator has been offered. The Respondent acknowledges that the Complainant was advised by her line manager that she would be paid 35 resource hours over the summer months. This was not authorised by HR. However, the Respondent will honour that commitment and, in that regard, accepts that the sum of €2,432.52 gross is owed to the Complainant.

CA-00059520-001  - Complaint under the Employment Equality Act, 1998

RELEVANT LAW

The Employment Equality Acts 1998-2015 (“the Acts”) prohibits discrimination on several grounds, including the ground of disability. Penalisation, in circumstances amounting to victimisation for making a complaint, is also prohibited under the Acts.

Definition of Disability

Section 2 of the Acts defines a disability as:

“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”

Prohibition on Discrimination

Section 6(1)(a) of the Acts provides 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 discriminatory grounds set out in s 6(2) including at (g) “that one is a person with a disability and the other either is not or is a person with a different disability” (i.e., “the disability ground”).

Reasonable Accommodation/Appropriate Measures

Section 16(3) of the Acts provides:

“(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—(i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training, unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

(4) In subsection (3) ‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself”.

Comparators

Section 28 (1)(f) of the Acts provides:

“For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows: . . . in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities”.

For a person with a disability to establish that they were discriminated against because of their disability, they must provide evidence of being treated less favourably than another person is, has been or would be treated in a comparable situation on grounds of their disability and that the person in the comparable situation has no disability or has a different disability to them. The Labour Court has previously held that when no similar employee is available for comparison, it may allow the employee to reply on a hypothetical comparator. Where a comparator is referenced, a successful claim will require demonstration of discrimination on the ground/s alleged.

Victimisation

Section 74(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.”

The act or acts which result in victimisation must be connected to a reliance on rights under the Employment Equality Acts 1998-2015. In Moriarty v. Dúchas (DEC-E2003-013) the Equality Officer outlined that it “is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”.

Burden of Proof

Section 85A(1) and (4) of the Acts provides:

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

“(4) In this section "discrimination" includes . . . (b) victimisation . . . . ”

The complainant is required to establish facts from which discrimination can be inferred. It is only when this burden is discharged does the burden shift to the Respondent to show that no unlawful discrimination took place. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of this evidential burden on a complainant and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant 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 a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Therefore a complainant must establish both the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination.  In Valpeters v Melbury Developments [2010] ELR 64, the Labour Court stated: “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

To determine whether the complainant has established a prima facie case a three-tier test is employed: (1) the complainant must establish that they are covered by the relevant discriminatory ground; (2) they must establish that the specific treatment alleged has actually occurred; and (3) it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

Separate decisions

Section 79 of the Acts provides:

“(1) Where a case which has been referred to the Director General of the Workplace Relations Commission under section 77 . . . (1A) (a) Claims to have been discriminated against on more than one of the discriminatory grounds shall be investigated as a single case, and (b) claims both to have been discriminated against on one or more than one of such grounds and to have been penalised in circumstances amounting to victimisation may, in an appropriate case, be so investigated, but a decision shall be made on each of the claims” (emphasis added).

Time Limits & Continuing Discrimination

Section 77(5) of the Acts provides:

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.” 

Under this section of the Acts, separate acts of discrimination may be sufficiently connected to constitute a ‘continuum of discrimination’. As noted by the Labour Court in County Cork VEC v Ann Hurley (EDA1124), this section “deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum”. The Court noted that in order for a complainant to rely on a continuum of discrimination or victimisation under s 77(5) of the Acts there must be a breach of the Acts during the cognisable period. The Court outlined “there must be some reality in the claim that acts of victimisation [or discrimination] actually occurred within the limitation period as otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.” Further, there must be some link established “between the occurrences outside the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely”. It was also noted by the Court that evidence in relation to alleged incidents which may not be within the cognisable period, but which are relevant and probative in relation to other occurrences, could be admitted in respect of those other occurrences.

The Labour Court later noted in Occipital Limited v Joseph Hayes (EDA 184) that it was “settled law that in order for alleged acts of discrimination to be considered as representing a continuum of discrimination it is necessary to establish that an act of discrimination has actually occurredwithin the cognisable period set down by the Acts for the making of a complaint”. In The Board Of Management Of Scoil Mhuire Agus Iosaf Junior School v Ms Pamela Brennan (EDA2220), the Labour Court, having first determined that the Complainant suffered no gender discrimination in respect of an aspect of the complaint which was within the cognisable period, concluded that there was no basis for the Complainant’s contention that an earlier alleged act of discrimination, which fell outside the cognisable period, was in a continuum of discrimination that rendered it admissible although outside the statutory time limit. The Court therefore determined this aspect of the complaint was also not well-founded.

Section 77(6A) provides for a different form of continuing discrimination or victimisation as follows:

“For the purposes of this section— (a) discrimination or victimisation occurs— (i) if the act constituting it extends over a period, at the end of the period, (ii) if it arises by virtue of a term in a contract, throughout the duration of the contract . . . (iii) if it arises by virtue of a provision which operates over a period, throughout the period, (b) a deliberate omission by a person to do something occurs when the person decides not to do it, and (c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either— (i) does an act inconsistent with doing it, or (ii) the period expires during which the respondent might reasonably have been expected to do it.

As noted by the Labour Court in Hurley an act of discrimination under this section “will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur IRLR 387) . . . In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred.”

Section 77(5)(b) of the Acts provides:

“On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly” (emphasis added).

Findings

Complaint of Discrimination on Ground of Disability

Section 77(5)(a) of the Acts provides that a claim for redress in respect of discrimination may not be referred after the end of the period of 6 months from the date of occurrence of the discrimination to which the case relates or, as the case may be, the date of its most recent occurrence. The Complainant referred the complaint under the Acts to the WRC on 20 October 2023, and therefore the cognisable period in relation to the complaint is 21 April 2023 to 20 October 2023. The Complainant cites the last date of discriminatory treatment as 3 October 2023. The Complainant seeks to rely on a continuum of discrimination. It was submitted on behalf of the Respondent that only matters that occurred in the cognisable period should be considered as part of the complaint.

Section 77(6A) of the Acts provides for a particular form of continuing discrimination. The Complainant’s representative did not claim there was a continuum of discrimination within the meaning of s 77(6A) of the Acts and appeared to be relying on a continuum of discrimination within the meaning of s 77(5)(a) of the Acts.

Section 77(5)(a) of the Acts provides for a different form of continuing discrimination. In relation to this section, incidents of alleged discrimination outside the time limit can only be considered if the last act relied upon was within the time limit and the other acts complained of were sufficiently connected to the final act so as to make all of them part of a continuum. Thus, if the Complainant in this case can establish that an act of discrimination on the ground of disability occurred between 21 April 2023 and 20 October 2023, it is open to me to consider matters that arose prior to that period and to consider if there was a continuum of discriminatory acts as provided for under s 77(5)(a) of the Acts.

The Complainant gave evidence in relation to three alleged acts of discrimination on the ground of disability as follows:

1.       The Complainant contends that she was refused reasonable accommodation in March 2023.

2.       The Complainant contends that the decision not to recruit her into the role of Co-ordinator in August 2023, following an open competition for the role, was directly related to her disability.

3.       From 5 June 2023 until 25 August 2023 the manner in which the Respondent calculated the amount payable to the Complainant under CIP was discriminatory.

The alleged discriminatory acts at no. 2 and no. 3 above are within the cognisable period for this complaint. I must first examine the evidence before me in relation to the alleged acts of discrimination at no. 2 and no. 3 above. If at least one of those alleged acts of discrimination is upheld, it will be necessary for me to consider the question of whether or not the alleged refusal to reasonably accommodate the Complainant’s disability is in a continuum with the other alleged acts such that it should be deemed to have been brought within time. Further, there must be some link established between the alleged discriminatory act outside the time limit, and those alleged acts inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.

Allegation No. 2: The Complainant contends that the decision not to recruit her into the role of Co-ordinator following an open competition for the role in August 2023 was directly related to her disability.

This alleged act of discrimination is within the cognisable period. The Complainant contends that she was over looked for the role of Co-ordinator despite the fact that she was more experienced and had longer service, and that the decision not to recruit her was directly related to her disability. This is refuted by the Respondent who took the hearing through the recruitment process. Having considered the oral testimony of the Complainant, I am satisfied that this contention is no more than mere speculation or an assertion and is unsupported by any evidence. The Complainant had no knowledge of the qualifications or experience of the successful candidate. The only submission made by the Complainant was that she was “more experienced” than the successful candidate but no further evidence was proffered in that regard. Therefore, in line with Melbury Developments, I am satisfied that this claim cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

Allegation No. 3: From 5 June 2023 until 25 August 2023 the manner in which the Respondent calculated the amount payable to the Complainant under CIP was discriminatory:

This alleged act of discrimination is within the cognisable period. It was common case that the payment to the Complainant under CIP was reduced from 5 June until 25 August 2023. The Complainant asserts that this was discriminatory. The Respondent contends that the reduction was because the Complainant, as a non-qualified teacher, was only entitled to the lower resource rate during the summer months. The Respondent averaged the hours worked over the previous two summers and arrived at 24 hours. The Complainant was then paid for 24 hours at the resource rate. It was conceded by the Respondent at the hearing that a commitment was given by local management to the Complainant that 35 hours at the resource rate would be guaranteed during the summer. HR were not told of this commitment. It was submitted by the Respondent that the normal practice is to pay the rate of pay to which an employee is entitled at any given time while in receipt of CIP, and not the rate of pay they were in receipt of at the time CIP commenced. The Complainant felt she should have received the rate of pay she was in receipt of at the time she commenced CIP.

There was no evidence proffered by the Complainant to show that any other employee, with the same or a different disability who was in receipt of CIP, was treated any differently to the Complainant or that any other employee who was in receipt of CIP received a rate of pay greater than they would have earned had they been physically working. I cannot find on the evidence presented that the decision to reduce the Complainant’s pay from June to the end of August 2023 had anything whatever to do with the Complainant’s disability. It may have been disingenuous not to honour the promise made to the Complainant to pay for 35 hours rather than 24 hours per week and disingenuous of local management not to notify HR of same at the time, but I am satisfied that it was not an act of unlawful discrimination within the meaning of the Acts.

In line with the findings of the Labour Court in Hurley, it is necessary that a discriminatory act occurred within the cognisable period in order for an event or events occurring outside of that period to be considered as part of a continuum or regime of discrimination and consequently within the jurisdiction of the WRC under the Acts. Having determined that the Complainant was not the subject of discriminatory treatment in the period between 21 April 2023 and 20 October 2023, for the purposes of s 77(5)(a) of the Actsas relied upon by the Complainant, I find I have no jurisdiction to consider the discriminatory treatment alleged to have occurred prior to 21 April 2023.

Complaint of Victimisation

A claim of victimisation must be assessed independently of the allegation of discriminatory treatment.

In relation to the victimisation complaint, it was submitted that the Complainant consistently raised concerns regarding timesheets both informally and formally and those concerns were ignored. The Complainant contends that she was faced with a constant battle of having to chase up time sheets to ensure she was paid causing her unnecessary stress at a time she was fighting cancer. Further, the Complainant argues that she was victimised when she was over looked for the role of Co-ordinator despite being more experienced.

In Department of Defence v. Barrett (EDA1017), the Labour Court held that the definition of victimisation at s 74(2) of the Acts “contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

What constitutes a protected act is defined at (a) to (g) of s 74(2): “(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.”

I am not satisfied the Complainant took an action of the type referred to at s 74(2) of the Acts. While the Complainant complained in August and September 2023 of the stress of having to continuously check if her hours had been approved in the system, there is no evidence that the Complainant complained of unlawful discrimination until 14 September 2023. The alleged acts of adverse treatment predate her complaint of discrimination on 14 September 2023. As the Complainant did not take an action of the type referred to at s 74(2) of the Acts, I find that the Complainant was not victimised contrary to the Acts.

In summary, I find the Respondent did not discriminate unlawfully against the Complainant or victimise the Complainant within the meaning of the Acts and that complaint CA-00059520-001 is not well-founded.

CA-00059520-002  - Payment of Wages Complaint

Relevant Law

Section 5(1) of the Payment of Wages Act 1991 (“the 1991 Act”) provides that an employer shall not make a deduction from the wages of an employee unless the deduction is required or authorised to be made by virtue of any statute or term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or the employee has given his prior consent in writing to it. 

Section 5(6) of the 1991 Act provides:

“(a) Where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act) ,  . . . then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 6(1) of the 1991 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding— the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55, outlined that when considering a complaint under the 1991 Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. 

Findings

The Complainant outlined that CIP provides for six months full pay and six months half pay. The Complainant understood this to mean that she would receive full pay for 6 months at the hourly pay rate she was on at the time she went on sick leave (i.e., 15 hours at the teaching rate and 20 hours at the lower resource rate). However, while she did receive this amount from 1 April 2023 and during Easter and mid-term breaks, the amount was reduced on 1 June 2023 for the summer non-term time to 24 hours at the lower resource rate.

I am satisfied that 15 hours at the teaching rate and 20 hours at the lower resource rate was not properly payable during the summer months, and therefore this element of the complaint is not well-founded.

It was accepted by the Respondent at the hearing that a commitment was made to the Complainant to pay her for 35 hours during the summer months at the lower resource rate. The Respondent accepted that the Complainant should have been paid for 35 hours at the lower resource rate rather than 24 hours at the lower resource rate for the period 5 June to 25 August 2024. The Respondent calculated the wages due to the Complainant to be €2,432.52 gross. This figure was accepted by the Complainant with respect to the differential between what was paid for 24 hours and what should have been paid for 35 hours at the lower resource rate over the relevant period. Based on the foregoing, I find wages for 35 hours rather than for 24 hours at the lower resource rate for the period June until 25 August 2023 were properly payable to the Complainant, and the failure to pay for 35 hours per week at the lower resource rate during this period constitutes an unlawful deduction within the meaning of the 1991 Act. Accordingly I find this element of the complaint to be well-founded. In accordance with s 6(1) of the 1991 Act, I direct the Respondent to pay the Complainant compensation of €2,432.52.

CA-00059520-001

I decide the claim of discrimination and the claim of victimisation under the Employment Equality Acts, 1998-2015 are not well-founded.

CA-00059520-002

I decide the claim under the Payment of Wages Act, 1991 is well-founded in part. I direct the Respondent to pay the Complainant compensation of €2,432.52.

Disability. Reasonable Accommodation. Victimisation. Payment of Wages.