Anonymised Parties

A Psychologist

A Healthcare Provider

Representatives

Self-represented 

Ciara Ruane, Byrne Wallace LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00049991-001

27/04/2022

The complainant joined the respondent’s organisation in January 2003.  He works as a senior clinical psychologist in a regional network team.  Arising from the respondent’s handling of a complaint regarding his assessment of a child for autism spectrum disorder (ASD), the complainant claimed that his place of work was unsafe and, from January 2019 until September 2020, he was absent due to depression.

Risk Assessment

The complainant was back at work for almost seven months on April 19th 2021, when his line managers carried out a risk assessment.

The hazard and risk were described as prolonged exposure to significant stress within the work environment arising from a grievance process lasting almost four years.  The source of the grievance is a review report of March 2017 arising from an appeal by the parents of a child assessed by the complainant.  While the complaints against the complainant were not upheld, this was not communicated to the child’s parents.  This is a major contributor to the stress experienced by the complainant.  His concerns are said to be “anchored in his experience of the systemic response of the respondent.”

Control measures in place to manage this risk was described as follows:

The complainant consulted the respondent’s occupational health service and was recommended psychotherapy, which he attended.  He attended a consultant psychiatrist, who diagnosed him as suffering from adjustment disorder.  The occupational health doctor attributed the complainant’s condition to how the respondent dealt with the complaint and advised that the issue required intervention from management.

Under the heading of “Additional controls required,” the risk assessment states that “the principal psychologist continues to provide support to the complainant but issues raised do not pertain to the psychology service…”  The risk assessment concluded that,

“The core issues need to be addressed at Senior Management level within Disability services and CHO 8 HR and Chief Officer level.

(Name of the complainant) is requesting that systemic issues he has raised in relation to the respondent management of its own timeframes and adherence to its own statutory requirements be addressed in order to provide the systemic framework in which he can work safely.”

The risk assessment was submitted to the general manager and the head of disability services in the healthcare region where the complainant works and to the chief officer and the head of HR.

Chronology Following the Risk Assessment

On May 14th 2021, the respondent’s computer systems were drastically compromised in a cyber-attack.  By September, despite the efforts of his line managers, there was no response by senior management to the complainant’s risk assessment and he submitted a complaint.  He got no response.  The complainant’s job-sharing line managers retired in late September 2021 and on October 28th, he wrote to the head of disability services requesting a safety statement “that fairly and reasonably addresses my concerns and takes reasonably practicable steps to control the risks and hazards within my working environment thereby making it safe from the perspective of my mental health…”  The complainant said that if he didn’t receive a response in two weeks, he would have no alternative but to make a complaint to the Health and Safety Authority.

The head of disability services replied on November 5th 2021.  In her letter, she outlined some initiatives to support the complainant; however, he felt that he was being asked to re-start the process with his new line manager.  In this way, he said that the protracted nature of the process was having a negative effect on his mental health.

On November 8th 2021, the complainant wrote to his line manager asking her to forward his correspondence to the chief officer and the head of disability services to clarify who will advise the child’s mother that her complaints are not upheld and how this will be reflected in the respondent’s formal response.  The complainant’s line manager wrote to the head of disability services outlining her concerns, but she got no reply.

In February 2022, the complainant’s union representative in Fórsa contacted the head of disability services, seeking a response to his request for a safety statement.  Also in February, the child’s mother requested support from the disability services in Louth.  The complainant was distressed at this request, seeing it as “one of the very hazards outlined and foreseen in my risk assessment of 19/02/21.”  He claims that his ability to do his job continued to be undermined.  

The following month, the complainant had a significant emotional breakdown in front of his line manager.  He had had an abusive phone call from a service user, which his manager described as “the straw that breaks the camel’s back.”  On March 11th 2022, he submitted a formal grievance regarding the failure of the respondent to provide a safety statement in response to the risk assessment carried out on April 21st 2021.  His grievance was acknowledged; however, no action was taken until a month later when the complainant’s line manager was instructed to conduct a Level 1 Grievance Meeting with him.  The complainant’s view is that his line manager has no authority to address his grievance or to advise the child’s mother that her complaint against him is not upheld.  At the grievance meeting on April 14th, the complainant said that he expressed his frustration that he was being penalised for raising what he considers to be a legitimate grievance regarding his safety, health and welfare at work.  On April 27th 2022, he submitted this complaint to the WRC.

On behalf of the respondent, Ms Ruane submitted that that the timeframe within which I have jurisdiction to consider a complaint of penalisation is the six months from October 28th 2021 until April 27th 2022, the date on which the complainant submitted this complaint to the WRC.  In this regard, it is important to note that the risk assessment which the complainant claims is the protected act giving rise to his claim of penalisation, was carried out April 19th 2021.  Ms Ruane argued that I have no jurisdiction to consider a complaint of penalisation outside the six-month period prior to April 27th 2022.

The complainant argued that, as his complaint concerns the respondent’s deliberate omission to put in place a safety statement in response to the risk assessment, his complaint is not out of time, because the penalisation concerns a continuing act of failure.  The complainant claims that his claim of penalisation arises from a deliberate omission to act, and the nature of this complaint requires time to pass before inferences can be drawn.

In the alternative, the complainant is seeking an extension of the time limit to 12 months before he submitted his complaint to the WRC, back to April 28th 2021.  He said that he and his managers had no access to documents after the cyber-attack on the respondent’s systems in May 2021 and access was restored only in August that year.

Conclusion on the Issue of the Timeframe

The Safety Health and Welfare at Work Act 2005 (“the 2005 Act”) is one of the Acts listed at Schedule 5 of the Workplace Relations Act 2015, giving the WRC authority to investigate complaints of penalisation under s.27 of the 2005 Act.  The complainant claims that he was penalised by his employer because they failed to carry out a risk assessment when he returned to work on September 28th 2020, following his absence due to depression.  He also claims that he was penalised when his employer failed to put in place a safety statement to address the risks identified in the risk assessment which was carried out on April 19th 2021.

Section 41(6) of the Workplace Relations Act provides that:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

I accept the complainant’s point that, arising from the risk assessment of April 19th 2021, it may have taken some time to establish that he was penalised.  I accept also that the cyber-attack on the respondent’s computer systems made it difficult for his managers to make progress on his concerns, while, at the same time, they were dealing with the continuing challenges presented by Covid-19.  From my review of the chronology of events leading to the complainant submitting this complaint to the WRC on April 27th 2022, it is apparent that most of the acts that he considers to be detriments occurred in the period after October 28th 2022, when he wrote to the head of disability services seeking a response to the risk assessment.  As the risk assessment was completed on April 19th 2021, the time limit has expired for claiming that he was penalised because this wasn’t done in the seven months after his return to work on September 28th 2020.  Based on this conclusion, there is no requirement for an extension of the timeframe and I intend to focus my enquiries on the alleged detriments described by the complainant that occurred in the timeframe from October 28th 2021 until April 27th 2022.    

The complainant’s case is that the risk assessment conducted on April 19th 2021 was a “protected act,” within the meaning of s.27(3)(c) of the Safety, Health and Welfare at Work Act 2005 (the “2005 Act”):

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work[.]

At the hearing of this matter, the complainant provided me with a comprehensive, 40-page submission which sets out his case in detail and which includes references to case law to support his position.  His submission has 21 appendices in an additional 40 pages.  It was challenging to summarise his case, but I have endeavoured to do so faithfully. 

The complainant claims that he was penalised when the respondent failed to act, when a safety statement was not developed in response to the risk assessment of April 2021, and that his employer engaged in retaliation to frustrate him and deter him from pursuing his complaints.   He claims that this caused damage to the implied contractual terms of trust and confidence.

The complainant referred to the respondent’s 2018 Policy for Prevention and Management of Stress in the Workplace which recognises “the human and organisational cost of stress…” and provides that senior managers have a responsibility to take steps to deal with the issue.

The complainant also referred to the respondent’s Open Disclosure Policy of 2019, the objective of which is to ensure that the rights of patients and staff affected by safety incidents are respected, and that communications are “open, timely, compassionate and empathetic” and that they are treated with dignity and respect.

The complainant claims that the respondent “refuses to advise the child’s parents about significant issues regarding the integrity and validity of the issued complaint review report which continues to function as the respondent’s formal response to their complaint.”  He is aggrieved because the parents were not advised that their complaints against him were not upheld.

Finally, in terms of corporate and legislative resources, the complainant quoted from sections 8, 13, 19 and 20 of the Safety, Health and Welfare at Work Act 2005.  He submitted that the respondent is legally required to address his health and safety concerns.  He stated,

“When my risk assessment was issued on 19/04/21 the respondent had a choice as to how it behaved in response.  If it chose to exercise that choice, as it has done here, by not taking action when it otherwise could have done so legitimately that is capable of being a deliberate failure to act (sic).  This deliberate omission imposed upon me a number of significant detriments amounting to penalisation for having raised my health and safety concerns.”

Detriment arising from a deliberate omission to act (subsection 2(b) in the complainant’s submission):

The complainant claims that the failure of the respondent to act by developing a safety statement to address the risks identified in April 2021 caused the following detriments:

1.      Significant damage to his trust and confidence.

Referring to the decision of the Industrial Tribunals and the Fair Employment Tribunal of Northern Ireland in the case of Tamara Bronkaers v the Department of Agriculture, Employment and Rural Affairs[1], the complainant quoted from a reference in that case to the decision of the House of Lords in Malik v Bank of Credit and Commerce International S.A.[2]

“The House of Lords confirmed that there is an implied term in the employment contract that the employer will not conduct itself in a manner calculated or likely to damage the relationship of trust and confidence between the employer and the employee.”

2.      Failure of the respondent to observe their duty of care obligations and to act with due diligence and care.

The complainant submits that the respondent refused to issue any response to how the hazards he described are to be removed.  He had a significant emotional breakdown on March 10th 2022, following a difficult phone call from the parent of a client.  He claims that the impact of ignoring his concerns is extremely upsetting and worrying and the respondent’s failure to act has caused significant distress and upset.

3.      Failure to assess the hazards declared in correspondence of November 11th 2021 and April 19th 2022.

Under this heading, the complainant referred to the direction of the head of disability services to him on November 11th 2021, to commence a grievance investigation with his new line manager.  In response, he advised the head of disability services that his consultant psychiatrist had assessed the protraction of the process as being an operant cause of the development of his psychiatric illness.  He said that he advised his employer of the risk that her direction would have on his mental health and wellbeing.  He claims that his concerns were not acknowledged or taken seriously.

4.      Undermining of the complainant’s ability to do his job.

The complainant is a highly qualified practitioner, with a first-class honours Bachelor of Science Degree in Applied Psychology, a Masters Degree in Applied Psychology and a Doctorate in Clinical Psychology.  In his professional capacity, he is responsible for the completion of ASD diagnostic assessments.  He said that he enjoyed a robust reputation among his peers and line management and he was regarded as having expert knowledge in the area of ASD diagnosis.  When a complaint was submitted about him in 2015, he believes that it was objectively reasonable for him to be concerned.  He believes it was also objectively reasonable for him to perceive that the respondent’s failure to exonerate him from “all wrongdoing I was accused of” was detrimental to his career and reputation.  He believes that, when he returned to work after one year and nine months of absence, it was objectively reasonable for him to be concerned about his work environment.  He believes that it was objectively reasonable for him to expect a response from senior management to the risk assessment carried out by his line manager.  He claims that the failure of his employer to respond to the risk assessment had the effect of eroding his professional confidence and undermining his ability to do his job.

The complainant claims that the fact that the child’s mother continues to seek disability psychology services for her children is undermining his ability to do his job.  Because the child’s mother has asked that the complainant is not involved in her children’s care, he is concerned about what his peers may think, when he cannot discuss a case which is normally within his remit of providing psychology services.  He claims that the effect of ignoring his request for a safety statement has decimated his confidence to give his professional opinion for fear of further complaints and how they would be managed.

5.      Undermining of his ability to observe his statutory obligations in relation to reporting of health and safety issues.

Under this heading, the complainant claims that his ability to observe his contractual and statutory requirements to report health and safety concerns is undermined by the respondent refusing to respond to his request for a safety statement.  He pointed out that any failure on his part to report a health and safety risk may be regarded as a disciplinary matter.  In this regard, he referred to the respondent’s Corporate Safety Statement of 2011 which provides that all employees have a responsibility for their health and safety at work and that failure to comply with the terms of the Statement may result in disciplinary action.

The complainant claims that the ignoring of his concerns by senior management has significantly damaged his confidence in them.  The respondent’s failure to act leads the complainant to feel like he is a troublemaker, leading to strained relationships with local and senior management.

6.      “Demeaning, devaluing, dehumanising, abusive and perverse treatment at the hands of senior management with consequent adverse impact and deterioration in my mental health and wellbeing.”

Again, the complainant claims that the respondent’s failure to act leads him to feel like he is a troublemaker, making him wrongly feel that he should not be raising his concerns.  He claims that the respondent’s refusal to act and to advise the child’s parents that their complaints were not upheld, evidences a pattern of detrimental treatment, impacting on his safety, health and wellbeing at work.  He claims that this is profoundly upsetting and may result in him becoming psychiatrically ill again.  He referred to the phone call from the parent of a client on March 10th 2022, following which he said that the “broke down and wept uncontrollably.”  He said that his professional confidence was shattered and that he was afraid to offer his professional opinion.  He said that he is afraid of what will happen if he is subjected to another complaint.  He claims that senior management’s deliberate failure to act is detrimental in the way it is demeaning and undermining.

The complainant claims that the child’s mother “continues to be emboldened and enabled” to to criticise him in front of others.  He said that he is not able to defend himself and that such treatment is perverse, abusive, demeaning and undermining.

Detriments arising from deliberate acts (subsection 2(c) in the complainant’s submission):

1.      Attempts to reframe his complaints and the issuing of false and inaccurate statements in rebuttal:

The complainant claims that he experienced detriments arising from the respondent’s deliberate acts which he described as “inaccurately reframing” his complaints on November 5th 2021 and when “false and inaccurate statements / rebuttals” were issued in response to concerns he expressed about his health and safety on October 28th and November 2nd 2021.

Referring to the decision of the UK Court of Appeal in Jesudason V Alder Hey Children’s NHS Foundation Trust[3], the complainant noted the finding that it is important to investigate and respond to employees’ concerns in a “reasoned, measured and accurate manner, since to deny them without justification could question the employee’s reputation and integrity.”

The complainant claims that, in accordance with the respondent’s statutory obligation at s.20 of the Safety, Health and Welfare at Work Act 2005, on October 28th 2021, he wrote to the respondent asking them to issue a safety statement.  In her letter of November 5th 2021, the complainant alleges that the head of disability services used “a number of false and inaccurate rebuttals” to justify the respondent’s position and the direction of the complainant’s concerns.  He claims that, in her response to his concerns, the head of disability services “mendaciously stated” as follows:

“I wish to reiterate the Head of Disability Service’s commitment to working with you, the Children’s Disability Manager, General Manager and other other (sic) supports for your health and wellbeing, healthy workplace and health and safety improvement plan in the …disability Network Team …”

The complainant claims that such statements are made with “mal fide intent” and are not supported by the facts.

In her correspondence to the complainant, the head of disability services referred to the risk assessments carried out on April 19th, August 3rd and 19th and September 13th 2021, in advance of the complainant’s return to work after sick leave.  This statement is inaccurate because the risk assessment of April 19th 2021 was carried out seven months after he returned to work.  The other dates refer to dates on which the complainant’s line manager asked for a response to the risk assessment, requests which were ignored.  The complainant claims that this is an attempt to discredit the available risk assessment, places him at continued risk and is an attempt to create another obstacle to him pursuing his complaints.

The complainant referred to correspondence he sent to the respondent on November 8th 2021 in which he asked:

a)      Who is going to advise the child’s parents that all of their specific complaints against me were not upheld?

b)     When will this happen? And,

c)      How will this be reflected in the formal respondent response to this complaint?

He also referred to a letter from his line manager to the head of disability services on the same day in which she said that, because she has no line management responsibility for the authors of the review report, she was unable to remove the hazard from the complainant’s working environment.  The complainant said that his correspondence and the letter from his line manager were ignored, despite the commitment of the head of disability services to work collaboratively with him to improve the health and wellbeing issues he raised. 

2.       Detriments arising from the respondent’s unfair and irrational response / retaliation to the complainant’s grievance.

The complainant referred to the emotional breakdown he had at work on March 11th 2022.  Arising from this, he submitted a formal grievance.  He requested a safety statement in response to the risk assessment carried out on April 19th 2021.  He said this must include a specific date when the child’s parents will be “advised in writing by the respondent that all of the complaints they raised against me, including those set out by name in the issued report, are not upheld.”

The complainant claims that the response from the head of HR on April 1st 2022 ignored the risk assessment of April 19th 2021 and his line manager’s follow-up correspondence in which she confirmed that the risks cannot be controlled locally.  He claims that, in this way, the head of HR “abuses the fact that I have submitted a grievance and now uses the grievance procedure as a mechanism to give effect to a perverse position / direction that (without justification) puts on hold my health and safety concerns”.  He claims that the head of HR’s “retaliation to my health and safety grievance was to imply that the workplace hazards and associated risks ceased to exist, or that, by raising my grievance, this in some way absolved senior management of their statutory obligations to act.”  He claims that this is a detriment imposed for raising a grievance about his health and safety.

In her response to his grievance, the head of HR said that she asked relevant managers in the disability service to schedule a hearing as a priority.  The complainant claims that, in this way, his line management were expected to be the decision-makers regarding his grievance against their superiors, even in circumstances in which they are witnesses to the events he complained about.  He claims that the HR department ignored the advice of the occupational health consultant who stated that the issue required intervention by senior management.  The detriment that the complainant identified here is that the head of HR ignored objective facts and the opinions of managers and clinicians and that this put his health at risk.

The complainant claims that, by insisting on irrational stages of the grievance procedure, the head of HR put his risk assessment and health and safety statement on hold, resulting in further protraction of the process, which, he claims, amounts to an effort to intimidate.

The “But For” Test

The complainant argued that it is reasonable to draw adverse inferences from the failure of the respondent to issue a safety statement in response to the risk assessment of April 19th 2021.  He claims that the “pattern of deliberate omissions created a pattern of detrimental acts, with the effect of significantly damaging the implied contractual term of trust and confidence.” 

Addressing the issue of causation, the complainant asserts that, had his risk assessment not been completed and if he had not pursued his efforts to clarify how the identified workplace hazards would be controlled, he would not have been subjected to “such detrimental, unfair, unreasonable, abusive and unfair treatment.”  He claims that, but for raising a grievance, he would not have been subjected to such treatment.

Conclusion of the complainant’s Written Submission

The complainant submits that his line manager submitted a risk assessment on April 19th 2021, describing a number of workplace hazards.  He argues that the risk assessment and the follow-up correspondence raised “any matter” relating to his health and safety and meets the requirement of a protected act, as set out at s.27 of the Safety, Health and Welfare at Work Act 2005.  He claims that he is afforded protection from penalisation for raising these issues.

In retaliation, the complainant claims that the respondent engaged in a series of deliberate omissions constituting detrimental treatment and other detriments arising from retaliatory actions from the head of disability services and the head of HR in the area where he works.  He claims that the actions of management amount to “significant and serious efforts to intimidate me, with profound adverse consequences on my health and wellbeing.”

As redress, the complainant is seeking a date when the child’s parents will be advised that all their complaints against him were not upheld.  He wants to be advised how this will be reflected in the respondent’s formal response to their complaint.  Finally, he is seeking compensation, at a minimum, equivalent to one year’s gross pay.

Evidence of the complainant

The complainant said that following his return to work on September 28th 2020, he heard that the child’s mother continued to criticise him.  He said that the child was assigned to another psychologist, a colleague who he supervised.  The complainant said that he was getting upset at work.  His line managers were unable to do anything.  When he was coming to work, he worried about the possibility that the child’s mother would criticise him and he didn’t know how to defend himself.

The complainant’s line managers were job-sharing in the role of principal psychologist.  A risk assessment came about when the complainant told one or both of his managers how he was feeling at work.  The assessment was carried out in April 2021, seven months after the complainant’s return to work.

The complainant described the lengthy process he went through communicating his need for a safety statement arising from the risk assessment and his multiple requests for a response.  Once the effects of the cyber-attack on the respondent’s computer systems of May 2021 subsided, one of the principal psychologists wrote to the disability manager on August 3rd and 19th 2021.  When there was no response, on September 8th 2021, the complainant submitted a formal complaint to his line manager, who sent his correspondence to senior management to address.  He claims that this correspondence was ignored.  On October 28th 2021, he wrote directly to the head of disability services and he received an acknowledgement the same day.  The complainant’s said that he was informed by his line managers that they had no responsibility for responding to the risk assessment and, by the end of October, the two job-sharing managers had left their positions.  On November 2nd, the complainant wrote directly to the head of disability services.  He received a reply on November 5th, which he claims contains false and inaccurate statements.  The complainant referred to this letter in some detail in his written submission (see page 7 above).

Arising from the response of November 5th 2021, the complainant said that he wrote to his new line manager, who, on November 8th, wrote to the head of disability services.  He said that there was no response to this letter.

On March 11th 2022, the complainant said that he submitted a formal grievance to the chief officer.  By March 30th, he had not received a reply and he wrote again.  In his submission, the complainant included a copy of an email dated April 7th 2022 from the disability manager to the general manager, the head of disability services, the HR manager and his line manager regarding a meeting on the same day which was held to discuss his formal grievance.  The purpose of the meeting was stated to be to discuss how best to proceed locally to address his grievance, as set out in his correspondence of March 11th.  The consensus of the three managers who attended the meeting was that a hearing of the complainant’s grievance at local level was not appropriate because of,

a)      The protracted nature of the grievance and the unavailability of all the relevant information;

b)     The additional control measures could not be implemented at local level;

c)      The risk of fracturing the working relationships between the complainant and his line management;

d)     The potential for undue stress of hearing the grievance at local level which may impact on the service provision.

The complainant said that it was agreed by the managers at this meeting that his grievance should be dealt with at the level of senior management.  On April 8th however, the complainant received a response from the head of HR, to the effect that his grievance would be handled by “relevant colleagues in Disability service…”  On April 11th, the complainant’s line manager informed him that she had been directed to conduct a grievance hearing with him in accordance with stage 1 of the respondent’s grievance procedure.  The complainant’s grievance was not upheld and, on April 27th 2022, he submitted this complaint to the WRC, based on his sense that his grievance would never be resolved.  In his evidence, he said that he didn’t believe that his grievance was being heard fairly.  He said that he doesn’t know whose risk register his risk assessment sits on.  He claims that his line manager’s view is that the safety statement for the unit where he works does not address the issues raised in his risk assessment.

While he submitted a complaint to the WRC, the complainant also appealed the outcome of stage 1 of his grievance to the disability manager.  On June 10th 2022, he was informed that his appeal was not upheld.  In her findings at this stage, the disability manager said that it was not possible to mitigate against the risks that the complainant identified in his risk assessment of April 19th 2021. 

Concluding his evidence, the complainant summarised the detriments he claims he has suffered, which have been recorded at pages 4 – 7 above.

The respondent’s position is that the complainant did not make a protected act and that no evidence of penalisation has been provided by him.  It is denied that he was penalised in breach of s.27 of the Safety, Health and Welfare at Work Act 2005.

Opening the respondent’s case, Ms Ruane set out the chronology of events that led to the complainant being out sick from January 2019 until September 2020, his submission of a grievance on March 11th 2022, followed by his submission of this complaint on April 27th 2022. 

On January 19th 2015, using the respondent’s feedback facility, a complaint was submitted by the parents of a child who was assessed for ASD by the complainant.  The complaint primarily concerned the family’s experience with the children’s disability services, the lack of access to services and the waiting time for services for their child.  In their complaint, the family referred to the complainant by name and they referred to his involvement in the care of their child.  The complaint was managed in accordance with the feedback facility’s complaints procedure.  Complaints officers were appointed to investigate the complaint.  The complainant was made aware of it through his line manager and was given an opportunity to respond.  A report was issued on July 13th 2016.  No adverse findings were issued in relation to the complainant and a number of recommendations were made regarding the disability services.  The child’s parents appealed the report’s findings.

Review officers were appointed to determine the appropriateness of the recommendations of the complaints officers and they issued a report on March 20th 2017.  The review officers made some new recommendations.  They did not make adverse findings about the complainant.  The complainants did not appeal against the findings of the review officers.

The complainant raised a grievance regarding the findings of the reviewers.  The grievance was considered by the chief officer and he issued a response on November 16th 2018.  The complainant’s grievance was not upheld.  In his outcome letter, the chief officer stated, “I, as chief officer, have no concerns about your conduct or professional practice arsing out of this matter.”  On foot of this report, the complainant submitted a grievance to the WRC.  He wants the reviewer’s report to be withdrawn and for the respondent to inform the child’s parents that their complaints are not upheld.  The respondent has offered the complainant the opportunity to make a comment on the findings of the review report and for this commentary to be appended to the report.  The complainant has declined this proposal.

The Alleged Protected Act and the Alleged Penalisation

The alleged penalisation that the complainant refers to in his complaint is firstly, the failure of the respondent to conduct a risk assessment until seven months after he returned to work on September 28th 2020.  Arising from the risk assessment itself, the second alleged penalisation relates to what the complainant considers to be the respondent’s deliberate omission to issue a safety statement.

Detriment

Ms Ruane submitted that the complainant provided no evidence of detriment, within the meaning of s.27(1) or (2) of the Safety, Health and Welfare at Work Act.  As authority for the respondent’s position, Ms Ruane referred to the decision of my colleague, Michael McEntee in Keith Cassidy v the Board of Management of Clonkeen College[4] which, finding against Mr Cassidy, the adjudicator held that “none of the examples cited in section 27 could be said to apply.  There was no dismissal, loss of pay or privileges etc for the Complainant.”

Ms Ruane also cited the case at the Northern Ireland Court of Appeal of Shamoon v Chief Constable of the Royal Ulster Constabulary[5].  In his judgement on this case, Lord Hope of Craighead considered the meaning of detriment referred to in an earlier case, De Souza v the Automobile Association[6]which held that,

“…the court or tribunal must find that, by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had to work thereafter.”

Lord Hope qualified this remark by pointing out, at paragraph 35, that, “an unjustified sense of grievance cannot amount to a detriment within the statutory meaning.”

Risk Assessment

The respondent submits that the complainant suffered no detriment because a risk assessment was carried out on April 19th 2021.  The length of time taken to conduct the assessment is outside the six-month time frame for consideration of this complaint which is from October 28th 2021 until April 27th 2022.

Safety Statement

The complainant is claiming that he suffered a detriment by the respondent not putting a safety statement in place in response to the risk assessment and that this has breached his trust and confidence and is a failure of the respondent’s duty of care to him.

Ms Ruane said that there is a safety statement in place in the unit where the complainant is based for work.  The occupational health consultant who examined the complainant recommended that a risk assessment was carried out and this was done on April 19th 2021.  The main hazard identified by the complainant is the existence of the report of the review officers and that the family of the child were not informed that their complaints were not upheld.  The family were never advised that complaints against the complainant were upheld.

The former head of employee relations offered the complainant the option of adding a rebuttal to the review report; the complainant rejected this proposal.

The complainant remains in employment as a senior psychologist on the unit where he has been employed for a number of years.

Ms Ruane refuted the complainant’s claim that there was a breach of trust and confidence or that the respondent failed in its duty of care to him.  She suggested that, at the core of this claim, the complainant is aggrieved regarding the review report and is unjustifiably asking for it to be withdrawn, or for a response to be issued to the child’s parents.  He disagrees with the attachment of a rebuttal to the report.  Ms Ruane asserted that this cannot amount to a detriment within the meaning of s.27(3) of the Act.

The Respondent’s Submission at the Hearing

Ms Ruane referred to s.8(1) of the Safety, Health and Welfare at Work Act which provides that,

Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.

In the risk assessment of April 2021, the complainant’s line managers identified the core of the complainant’s concern and a major contributor to the stress he is experiencing as the review report of March 20th 2017.  The report is private and confidential, but the complainant is concerned that it “continues to function as the service response.”  The complainant is asking for the report to be withdrawn, or for the respondent to inform the child’s parents that their complaints against him were not upheld.  He has declined an opportunity to submit a rebuttal and for this to be appended to the report.  Ms Ruane submitted that the complainant is seeking a requirement beyond what is required by the 2005 Act.

At the hearing, the complainant clarified that the protected act is the risk assessment.  Ms Ruane replied that, if this is the protected act, there is no evidence that the complainant has made a complaint.  If he is saying that the protected act is the risk assessment, he needs to show that the respondent retaliated.

Ms Ruane submitted that no detriment was imposed and that there is no “but for” element to the complainant’s claim and, on this ground, she argued that his complaint is without substance.  In this regard, the respondent is relying on the decision of the Labour Court in Cassidy v Clonkeen College.  Ms Ruane also referred to the decision of the Labour Court in Toni and Guy Blackrock Limited v Paul O’Neill[7]which I will refer to below under “Findings and Conclusions.”

Ms Ruane asserted that none of the detriments set out at s.27(2) of the 2005 Act have occurred.  She submitted that the failure to issue a safety statement is not retaliation.  A safety statement has not been issued because of the complexity of the issue that the complainant is asking to be addressed.  Ms Ruane said that there has been engagement with the complainant’s line managers regarding the risk assessment.  The report about which he complains is not specific to him, but is about the children’s disability services in the region where he works. 

Ms Ruane said that the confusion regarding whose responsibility it is to address the hazard and whether that was the complainant’s line manager or senior management, is not retaliation.  The complainant has not shown that the way his grievance was handled was in retaliation for having carried out a risk assessment.  The complainant’s grievance was heard at stages 1, 2 and 3, with the third stage hearing taking place in June 2022.  There was no outcome from this stage.

Ms Ruane referred to the findings of the chief officer in November 2018, in response to a grievance submitted by the complainant concerning the review report.  In his outcome letter, the chief officer stated, “I, as chief officer, have no concerns about your conduct or professional practice arising out of this matter.” 

In concluding remarks at the hearing, the current head of employee relations said that the feedback process was followed “to the letter” concerning the complaint of January 2015.  He said that the part of the complaint that related to psychology services was brought to psychology services for a response.  A copy of the report was provided to the chief officer and the complainants. 

The Relevant Law

Section 27(1) of the Safety, Health and Welfare at Work Act 2005 refers to “penalisation” as,

any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

Subsection (2) provides examples of the conduct of an employer encompassed by the definition of penalisation:

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

The complainant’s case is that his employer omitted to act, by failing to develop a safety statement to prevent a recurrence of the detrimental impact on him of the respondent’s management of a complaint by the parents of a child he assessed for ASD.  He further argues that, in their response to his request for a safety statement, the respondent attempted to re-frame his complaints and that the response from senior management was unfair and irrational.

The complainant argues that he made a protected act which is encompassed by the definition at s.27(3)(c) of the 2005 Act:

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work[.]

The complainant’s case is that, by conducting a risk assessment on April 19th 2021 and, by identifying the “major contributor to the stress he is experiencing,” he carried out a protected act. 

The Burden of Proof

The decision of the Labour Court in Paul O’Neill v Toni and Guy established that the burden of proof is on a complainant to show that they carried out a protected act and, that considering the circumstances of what then occurred, it is reasonable to assume that “but for” having committed the protected act, no detriment would have been imposed.  The penalisation suffered by Mr O’Neill was that he was dismissed.  In the chain of events leading to his dismissal, the Labour Court concluded that the protected act that was the “operative cause” of his dismissal was his complaint about the quality of the protective gloves provided by his employer.

The burden of proof therefore, requires a complainant to show cause and effect; was the cause of the penalisation the protected act?  It is my view that the most logical and pragmatic approach to answering this question is to look in the first instance at the evidence to determine if penalisation has occurred.

Is there Evidence of Penalisation by the Respondent?

The complainant grounds his claim that he was penalised on the generality of the definition at s.27(1) above, which provides that penalisation includes “any act or omission” that affects an employee to their detriment, concerning a term or condition of employment. 

On behalf of the respondent, Ms Ruane asked me to consider the decision of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary (footnote 5) and the meaning of “detriment,” in the context of penalisation.  Drawing on the outcome of De Souza v the Automobile Association (footnote 8), Lord Hope of Craighead referred to the interpretation that a “reasonable worker” might have that they were disadvantaged by the acts of their employer.  Certainly, the complainant feels that he has been disadvantaged by his employer’s failure to put in place a safety statement that addresses the risks he named in the assessment of April 2021. 

Lord Hope went on to consider the way in which the word “detriment,” draws a “limitation on its broad and ordinary meaning from its context and from the other words with which it is associated.”  At s.27(2) of the 2005 Act, the word “penalisation” is situated in the context of a list of actions by an employer that are clearly detrimental and negative for an employee:  dismissal, lay-off, suspension, demotion, transfer of duties, reduction in wages, a disciplinary sanction and coercion and intimidation.  The meaning of penalisation at s.27(2) therefore, implies an action on the part of the employer that, in degrees of detriment, runs from dismissal to a reduction in wages.

It is a requirement of every employer, under s.20 of the 2005 Act, to prepare a safety statement in response to the identification of risks presented by hazards in the workplace.  When he submitted his grievance about the review report, a safety statement was in place in the unit where the complainant works.  It is apparent that senior management was satisfied that this was adequate for the risks identified in the unit and that the issues he identified as risks could not be addressed in a safety statement.  The decision of senior managers to not draw up another safety statement in response to risks identified by the complainant is not, in my view, conduct that a “reasonable worker” would interpret as penalisation.  It is clear from the risk assessment of April 2021, that the complainant considers that “the issues pertain to a Review Report issued subsequent to a complaint.”  This is an entirely individual concern on the complainant’s part and not something that can be addressed in a safety statement.  It is my view that the issue was addressed in the findings of the chief officer in November 2018, who, although not upholding the complainant’s grievance, stated that,

 “…there were no adverse findings or comments in relation to you and accordingly, there cannot have been any damage to your good name and reputation, which remain intact.  As I also previously stated, I, as Chief Officer, have no concerns about your conduct or professional practice arising out of this matter.”

I understand from the complainant’s evidence that this was not sufficient to alleviate his distress and, in January 2019, he commenced a period of absence that lasted one year and nine months, during which he was diagnosed with depression and adjustment disorder.  I accept that the complainant was distressed in June 2017 when he discovered that the review report had been issued without his input.  I accept also that he was diagnosed with a mental illness in January 2019, when management decided not to withdraw the report and he has bitter criticism for the way his formal grievances were handled.  I have no doubt that the complainant’s emotional and psychological responses to what occurred are real and profound.  However, I do not accept that the treatment he complains about, the failure to issue a safety statement, is equal to the meaning of penalisation at s.27(2) of the 2005 Act.  Having reviewed all the correspondence between the complainant and the senior management in his healthcare region, I am satisfied that they invested time, energy and resources in their attempts to address his concerns and there is no evidence that any manager retaliated against him for submitting a grievance.  He suffered no detriment pertaining to his terms and conditions of employment arising from how his grievance was handled.  I have compassion for how the review report of 2017 affected the complainant, but a person’s individual response to a detriment (if a detriment had been imposed) is not the same as the detriment itself and I do not find that the complainant’s medical response to what occurred amounts to penalisation.

The Protected Act

For completeness, I wish to respond to the complainant’s case that the risk assessment conducted by his line manager on April 21st 2021 was a protected act.  This document describes the hazard as,

“Prolonged exposure to significant stress within the work environment of staff member, the complainant, associated with a protracted grievance process (nearly 4 years).” 

A background is provided which shows that the stress is focussed on the review report of March 2017 and the complainant’s concern that the complainants were not informed that their complaints about him were not upheld.

Under the heading of “Existing Control Measures,” the document states that “the complainant has exhausted all internal respondent processes.”

Under the heading of “Additional Control Measures” the assessment states that “the core issues need to be addressed at Senior Management Level within Disability Services and (the healthcare region) and Chief Officer Level.”  It concludes that, the complainant

“…is requesting that the systemic issues he has raised in relation to the respondent management of its own time frames and adherence to its own statutory requirements be addressed in order to provide the systemic framework in which he can work safety.”

I note that, at the time that his line manager completed this assessment, in April 2021, the complainant did not refer to it as a protected act.  A year later, in an eight-page letter to the children’s disability network manager, in which he submitted a formal grievance, he did not mention that the risk assessment was a protected act, but he repeated his request to have the review report withdrawn.  Among his requests, he stated (on page 7):

“A risk assessment has been completed, clearly identifies the hazards within my working environment and the actions required.  These actions have been repeatedly communicated to Senior Management, including their statutory obligations.  Senior management have not addressed the issues and have not issued a safety statement that removes from my working environment the identified hazards.  It has been well rehearsed at this stage why local management cannot do this, but Senior Management continue to ignore this fact.”

“Action:  It is therefore not open to you to conclude anything else but to uphold my grievance because it is simply a statement of fact no safety statement exists.”

If the complainant intended the risk assessment to be a protected act, it is my view that he would have stated this in the outline of his grievance which he submitted to the children’s disability manager on April 14th 2022.  I find that the risk assessment was not a protected act, in that it was not a “complaint or representation” as set out at s.27(3)(c) of the 2005 Act.  I find that, by collaborating with his line manager to develop a risk assessment, the complainant was seeking re-submit the grievance that was decided on in November 2018, but not to his satisfaction. 

Conclusion

I have considered the facts of this case, as set out in the written submissions of the parties and I have considered the evidence of the complainant at the hearing on May 2nd 2023.  I find that no impediment or penalty within the meaning of penalisation at s.27(2) of the Health, Safety and Welfare at Work Act 2005 was imposed on him because of the decision of the respondent not to draw up a safety statement in response to his risk assessment of April 2021.  I understand a safety statement is in place in the location where the complainant works and I must conclude that senior management have decided that it is adequate for the risks identified.

The 2005 Act requires the employer to do everything that is “reasonably practicable” to ensure the health and safety of employees.  I am satisfied that the offer to the complainant to write a rebuttal to be amended to the review report was adequate to address his concerns.  I encourage the complainant to take up that option if it remains available, and, for the sake of his health and wellbeing, to bring this matter to a close.

Based on the conclusions I have set out above, I decide that this complaint is not well founded.

Penalisation, detriment, protected act