Complainant

Respondent

Parties

Georgina O'Driscoll

Daffodil Care Services Unlimited Company

Representatives

Ger Kennedy, SIPTU 

Barry O’Mahony, BL

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-00051895-001

27/07/2022

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

CA-00051923-001

Withdrawn

28/07/2022

The respondent is a private social care provider with four residential centres.  They provide residential and therapeutic childcare services for boys and girls between the ages of 12 and 17.  Each house has a manager and deputy manager and, typically, nine social care staff.  In April 2021, the complainant commenced employment as a social care worker and was assigned to work in a house with three young people.  In January 2022, one of the boys in the house reported to the manager that he heard the complainant and her co-worker, AL, having sex while they were rostered on an overnight shift.  The young person also reported that, on January 25th, while he was being driven to a family event by the complainant, she was stopped by a member of An Garda Síochána for using her mobile phone and that, having been stopped, she was argumentative with the Garda.  Following a disciplinary investigation, on March 14th 2022, the young person’s allegation that the complainant was having sex with her colleague at work was not upheld.  She received a written warning in relation to her use of a mobile phone while driving.  From here on, I will refer to the young person as “YP.” 

In April 2022, the complainant and AL submitted a grievance regarding the respondent’s management of the investigation into YP’s allegation.  An independent investigator, Ms Sarah Daly BL, was appointed to hear their grievances.  On July 27th 2022, before Ms Daly issued her final report, the complainant submitted this complaint to the WRC.  She claims that, during the investigation into the allegation of misconduct, and, during the grievance investigation, as a heterosexual, she was treated less favourably compared to a homosexual colleague.  She also claims that she was discriminated against on the grounds of her gender and family status as a single parent.  

In her report of August 9th 2022, Ms Daly upheld some aspects of the complainant’s grievances, but she did not uphold most of her complaints.  The complainant resigned in October 2022.  

Chronology Leading to the Complainant Submitting a Grievance

On Wednesday, January 26th 2022, when YP reported that two staff members were engaged in sexual activity while on duty in his house, the respondent treated the allegation as a child protection issue and reported it to Tusla.  Later that day, the regional manager informed the complainant about an allegation of a child protection nature and told her that she was being suspended from work without pay, pending an investigation.  She was removed from the roster in the house and from the staff WhatsApp group.  While the management waited for direction from Tusla, the complainant was not given any information about YP’s allegation. 

The following day, a Child Protection Notification was submitted to Tusla, and Tusla was informed that the two named employees had been suspended.  Written confirmation was provided by Tusla on Friday January 28th to the effect that the respondent could proceed with their investigation. 

The complainant and AL were requested to attend separate disciplinary investigation meetings on February 1st 2022.  The allegations to which the complainant was required respond were:

(i)               Unprofessional conduct with a colleague in the workplace concerning an allegation of engagement in sexual behaviour while on shift;

(ii)              Gross misconduct regarding breach of their duty of care when engaged in unprofessional conduct with a colleague;

(iii)            Gross misconduct regarding the use of a mobile phone while driving a car with YP as a passenger;

(iv)            Gross misconduct and unprofessional conduct in response to being stopped by a member of An Garda Síochána for driving and using a mobile phone.

The day before the meeting, the complainant was provided with an extract from YP’s statement to the regional manager concerning her conduct.  In addition, she Was given a copy of a video recording taken by YP of her interaction with the Garda on January 25th.

The complainant attended the disciplinary investigation meeting on Tuesday, February 1st at 1.00pm.  The colleague she had selected to accompany her attended a meeting with AL at 11.00am on the same day and the complainant was advised that she should select someone else.  She couldn’t find anyone at short notice and she attended the meeting on her own.  The respondent’s submission notes that the nature of the investigation “necessitated the asking of questions related to sexual activity.  Questions asked regarding the complainant’s relationship with ‘AL’ were entirely necessary… and went to the core of the credibility of the complainant.”  The complainant alleges that, at this meeting, which, she said, lasted for two hours and 50 minutes, she was subjected to a humiliating and degrading experience, with no regard for her personal dignity or integrity.

Before and after the disciplinary investigation meetings, other members of staff were interviewed and the notes of these interviews were provided to the complainant and AL for their comments.  Arising from the meetings with the witnesses, the complainant claims that she was discriminated against in the way the witnesses were asked if they had any knowledge of a romantic or sexual relationship between her and AL.

On February 4th 2022, the complainant wrote to the respondent, informing them that she had taken advice regarding the disciplinary procedure.  She said that she had been advised that it was unlawful to suspend her without pay.  The respondent sought legal advice and, on foot of this, changed the provision in their disciplinary procedure providing that employees could be suspended without pay to facilitate a disciplinary investigation.  In July 2022, the complainant was reinstated on the payroll and was re-imbursed for her loss of wages from the date of her suspension on January 26th.  The complainant was not paid for periods of absence due to sick leave that occurred after she was suspended, or for periods when she was not suspended, but did not return to work.

One week after the disciplinary investigation meetings of February 1st 2022, Mr Ger Kennedy of SIPTU contacted the respondent as the representative of the complainant and AL.  Having received the notes of the meetings of February 1st, on February 17th, Mr Kennedy wrote to the respondents severely criticising the conduct of the managers who carried out the disciplinary investigation.

On March 7th 2022, accompanied by Mr Kennedy, the complainant and AL attended separate follow-up disciplinary meetings.  This time, the meetings were recorded and a digital transcript was provided to both sides.  On March 14th, the complainant and AL were informed that the allegations made by YP were not upheld. 

The complainant was invited to a disciplinary meeting on March 21st to investigate YP’s allegation that she was stopped by Gardaí on January 25th 2022 for driving using a mobile phone.  She was unable to attend the meeting due to illness.

The following day, the complainant lodged a grievance in relation to her suspension without pay.  At this time, she was on sick leave and the respondent’s position is that, while she was absent due to illness, she was not entitled to be paid her wages.

On April 8th 2022, the complainant and AL reported serious allegations to Tusla against the management and also regarding the conduct of a co-worker in relation to YP.  The co-worker is a gay man, who I will refer to as “CD.”  The complainant and her colleague also reported that they had been subjected to sexual assaults by CD and that the respondent had attempted to supress their concerns.  The Gardaí and Tusla were notified and CD was suspended while Tusla carried out a screening investigation.  At this point, the respondent’s policy on suspension without pay had been changed and CD was suspended with pay.  On May 3rd, Tusla advised the respondent that the child protection concerns raised by the complainant and AL did not meet the threshold for a specific assessment and the matter was closed.  The respondent was then in a position to carry out its own investigation into the conduct of CD in relation to the allegation of sexual assault against the complainant and AL.

On April 13th 2022, Mr Kennedy lodged 48 grievances on behalf of the complainant and AL.  That same month, the complainant’s sister died and she was unable to attend meetings under the grievance or disciplinary procedures. 

From April 26th, the complainant was certified as fit to attend work again.  On April 29th, she was informed that Ms Sarah Daly, BL, had been appointed to conduct the grievance investigation and that the disciplinary investigation into the allegation of driving while using a mobile phone would be put on hold until that investigation had concluded.

On May 4th, Sarah Daly commenced her investigation into the 48 grievances submitted by the complainant and her colleague.

On July 7th, following an intervention by her solicitor, the complainant was paid the wages that had been deducted while she was suspended.

On August 9th, Ms Daly issued a report in which she upheld a small number of the complainant’s grievances.  Overall, however, Ms Daly concluded that her grievances were not well founded.

When the disciplinary process was concluded, the complainant was invited to return to work, and, when she did not return, her wages were stopped and she was considered to be on unpaid leave.

The complainant appealed to the respondent’s chief executive officer against Ms Daly’s findings.  Ms Daly was asked to address the points raised by the complainant and she provided a response on September 14th 2022.  On September 30th, the chief executive officer decided that the complainant’s appeal was not upheld.

On October 4th, the director of operations wrote to the complainant asking her to return to work, but she resigned.  By email the following day, the chief executive officer asked her to re-consider her resignation; however, on October 14th, she confirmed her decision to resign.  She was paid four weeks’ pay in lieu of notice.

In her submission, the complainant set out the chronology of events that have been described in the previous section.  My focus in this section therefore, is to present the complainant’s response to what occurred between January 26th 2022 and when she made this complaint to the WRC on July 27th.

The complainant describes the respondent’s treatment of her as “an abject failure by management on multiple grounds to meet the very basic requirements of fair procedures …”  By suspending her without pay from  January until July 2022, she claims that the respondent had no consideration of how this would affect her financial and mental well-being or for the effect that it would have on her family.

The complainant said that she was a highly committed member of staff who, when this incident commenced in January 2022, had recently completed her probation.  She said that she had a great relationship with the young people and she was regarded as a committed and dedicated member of the team in the house where she worked.  She said that the allegations made against her had a profoundly damaging effect on her personal and professional life and caused stress for her family.

When she was suspended from work on January 26th 2022, the complainant said that she told the regional manager who had telephoned her that she was confused and in shock and disbelief about the allegation, and that she had never had a complaint made about her. 

On January 27th, the regional manager was waiting for instructions from Tusla about the next steps to be taken.  A risk assessment was drafted for staff to read when coming on duty.  The risk assessment informed the staff that two employees had been suspended and that the reason was due to an allegation of sexual misconduct.  The risk assessment did not name the complainant or her colleague, but they were removed from the roster and from the house WhatsApp group, and this made it apparent to the staff that they were the subject of the allegations.  The complainant said that, unknown to her, her colleagues at work were informed about YP’s allegation, and that she and AL had not been given any details regarding what the allegation was about.

The complainant said that arising from YP’s report, a “significant event notification” (SEN) was uploaded to the respondent’s internal computer system.  This contained sensitive information and details of the sexual misconduct allegation.  The complainant said that the SEN was accessible to all staff, but it was not provided to her at the disciplinary hearing and he did not receive a copy until it was provided by the external investigator, Ms Sarah Daly, on July 26th 2022.

The complainant contends that the information contained in the SEN is a breach of her right to confidentiality and that the failure of management to act on this contributed to the circulation of sexually based allegations about her and AL.

On January 30th, a “complaint document” was uploaded to the respondent’s internal computer system.  This contained the allegation made by YP concerning the complainant and her colleague, with their names.  The complainant said that she received this document also from Sarah Daly on July 26th 2022.  She said that she received details of the allegations on January 31st at 15.25, leaving her with less than 24 hours to prepare for the disciplinary investigation meeting on February 1st.

Around 11.00am on the day of the meeting, the complainant was informed that the colleague she selected to accompany her had accompanied AL at his meeting and that she would have to select a different person to accompany her.  The complainant said that she had no time to find someone different to attend the meeting with her, and, when she wasn’t offered the option of postponing, she attended the meeting on her own.

The meeting on February 1st was chaired by the regional manager and the director of services.  At the meeting, which lasted for two hours and 50 minutes, the complainant claims that the managers posed “numerous sexually harassing questions” about her purported sexual relationship with AL.  She claims that the questions were intrusive, sexually harassing, degrading, and humiliating, “within a hostile, stressful and intimidating environment.”  He said that the questions were not recorded in the notes of the meeting, which, he claims were “sanitised” to minimise liability.  He said that he was not afforded the right to confirm or deny the allegations of gross misconduct. 

In her submission, the complainant gave examples of the questions that caused her such distress:

§  Tell me about your relationship with your colleague, AL.

§  Do you socialise with AL outside work?

§  Did you have sex with AL in Cork in a hotel?

§  If I rang the hotel and asked did you and AL share a room, would that worry you?

§  Did you have sex with AL in a hotel in Carlow?

§  Did you touch AL’s face at HIQA training?

§  Are you and AL in a relationship?

§  Did you touch AL’s leg or face or give the impression that you were flirting with him?

§  Would you worry if we asked other people on the staff about your relationship with AL?

§  Did YP speak to you about your flirting with AL?

§  Why do you think so many people have suspicions about your relationship with AL?

The complainant said that, although she committed to participating in the disciplinary meeting, she did not want to be asked intrusive questions and she asked the managers to stop.  She said that both the managers were aware that another employee, “CD,” had a long history of engaging in “sexually driven conversations” about her and AL and she claims that this gave the managers a prejudicial and biased opinion of her on which they based their questioning.  The complainant said that the way she was treated violated her dignity and created an intimidating, hostile and humiliating environment for her. 

At the disciplinary meeting, the managers brought up the finding of a condom wrapper in December 2021 in the house where the complainant worked.  The complainant said that neither she or AL were on duty the night that the condom wrapper was found.

When she was provided with copies of the statements of the staff who were interviewed as part of the investigation, the complainant became aware that, in September and December 2021, CD, other staff members and the manager of the house in which the complainant and AL worked discussed the possibility that they were in a relationship.  It appears that, in December 2021, when the house manager discussed the finding of the condom wrapper, CD and the deputy manager mentioned the complainant and AL.

During the interviews with staff members, the complainant claims that the managers asked them “sexually leading questions” that “provided a platform for our colleagues to respond to sexually harassing verbal questioning” directed at her and her colleague and which resulted in “sexually harassing and discriminating answers.”

On February 9th 2022, the director of services sent the complainant an email with the minutes of the meeting of February 1st.  On February 10th, Ger Kennedy of SIPTU wrote to the managers and claimed that the version of the minutes they presented was an effort to diminish the respondent’s exposure to claims of discrimination.  On February 24th, the complainant and AL sent the managers a revised note of their version of the minutes of the disciplinary investigation meeting that took place on February 1st.  The complainant claims that one of the omissions from the respondent’s version of the notes is her report to the managers that CD was speaking to YP about her and her colleague.  The complainant claims that the respondent failed to act on this information. 

On March 7th, when she attended a second investigation meeting, the complainant was represented by Ger Kennedy.  Although she was informed on March 15th that the allegations were not upheld, the complainant claims that this finding did not exonerate her.  On April 13th, on behalf of the complainant, Mr Kennedy lodged 48 grievances concerning her treatment by the respondent.

It is the complainant’s position that, by engaging in “this sexually harassing questioning to seek answers to get to the bottom of the allegations,” the managers completely overstepped the mark and normal boundaries to invade my personal and private life especially my sexual life.”  She claims that she struggled to speak out at the disciplinary meeting on February 1st 2022 and she felt under duress to answer questions.  She concluded her submission as follows:

“The most difficult emotion I have had to try managing and process is that of shame, the fact that I felt obliged to answer the questions and had my alleged sexual and personal life invaded within my professional career to such a degree has left me with a shameful image of myself and I cannot seem to disassociate from this emotion and thought.”

Evidence of the Complainant

In response to questions from Mr Kennedy, the complainant said that she commenced working for the respondent in April 2021.  She is a social care worker with an honours degree in Social Care.  She described the clients in the respondent’s care as young people, often from difficult family backgrounds, who are vulnerable and with additional needs.  She said that they require support plans and daily guidance.  She said that she had no problems in her job until January 26th 2022.

The complainant then said that before Christmas 2021, she was asked by the manager in the house if she was aware of any inappropriate relationships between staff.  When the complainant asked the manager to clarify what she was talking about, the complainant said that she was asked if she was in an inappropriate relationship with a staff member.

The complainant said that January 26th was her mother’s 70th birthday and she was getting ready to celebrate with her family when she got a phone call from the regional manager.  She said that she was informed that there had been an allegation of misconduct, but she wasn’t given any information about what the misconduct was about.  She was that she was told that she was being suspended without pay.  The complainant described that shock of the telephone call.  She said that she told the regional manager that she was shaken and stressed by the call.  She said that she couldn’t go to her mother’s birthday party and that her children observed her shaking with shock.

The complainant said that she received a follow-up email confirming her suspension, and then she was removed from the staff WhatsApp group and from the roster in the house.  She said that she felt left in the dark and she didn’t know what was coming next.  On January 27th, she was requested to attend a disciplinary meeting on February 1st at 1.00pm.  On January 31st, she received further correspondence setting out the nature of the allegations.  The complainant selected a colleague to attend the disciplinary meeting with her.  She said that, apart from this colleague, all the other staff blocked her from contacting them.  At 11.00am on February 1st, she got a phone call to let her know that her colleague had accompanied the complainant at his disciplinary meeting and she was advised to select someone else.  She said that she hadn’t got time to find another person to attend the meeting with her and she went ahead on her own.  She said that she won’t forget that day, and that she felt very alone.

At the meeting, the complainant said that both the mangers were taking notes and it appeared to her that there was no consistency to their line of questions.  She said that she went in blindly to the meeting and that she had no idea what she was about to face.

When she arrived at the hotel where the meeting was taking place, the complainant said that the meeting with the complainant was still going on.  When he emerged from the meeting room, she said that he had a look of distress on his face.  She said that that had an effect on her.

The complainant said that she was invited into the room where the meeting was taking place, and that she was very nervous and anxious.  She said that she went to the meeting with a willingness to participate and she thought that the managers would follow a fair procedure.  She said that the assistant director of services and the regional manager told her that they had prepared questions and that they would ask the same questions in multiple ways.

Because she thought that the managers already had information, the complainant felt that they had formed a judgement about her conduct.  She said, “respect for me was dropped” and the managers seemed to be fully aware of everything.  She said that she felt that they had prior knowledge that she wasn’t aware of.  She described the managers as hostile and she said that she felt that she didn’t stand a chance.

The complainant referred to a meeting on Zoom in early January with the staff who worked in her house.  She said that the regional manager told the staff that a condom or a condom wrapper had been found in the house and that they would all be spoken to about it.  She said that, after the staff meeting, a colleague told the managers that she noticed that when the condom was mentioned, the blood drained from the complainant’s face.  The complainant said that when she was spoken to, she was asked if the condom was hers.  She said that she felt that she had to tell the managers that she had an allergy to latex.  At the disciplinary meeting on February 1st, the complainant said that she was again asked about the condom and she was asked why she never informed the managers about this allergy.  She said that she was then asked questions that were personal, humiliating and degrading, in relation to how she reacts to latex.

The complainant said that she was asked why she sat close to the complainant at a meeting.  She was asked if he visited her in her home and the suggestion was made that she didn’t have to be in a relationship to have casual sex.  The managers asked her if she would be worried if they spoke to her colleagues.  The complainant said that she had been in a relationship with the father of her two children for 23 years and she felt “like a whore.”  She said that she felt wrong speaking about her colleague.  She said that, at the meeting on February 1st, she was not asked if she had sex in the house where she worked.

The complainant said that the staff in the house modelled good behaviour and that she would never do anything to disrespect the young people.  She said that the fact that she was friends with the complainant meant that they were viewed very differently and unfairly by the management. 

During the meeting, the complainant said that she felt uncomfortable by the questions being asked and she wanted the questioning to stop.  She said that she felt “broken down” by the questions and she didn’t feel that she could ask for a break.  She said that she was surprised by how she was treated.  She said that she trusted the assistant director of services, but she didn’t know the regional manager.

The complainant accepts that YP was entitled to have his complaint investigated and she knew that the regional manager had interviewed him.  She said however, that the managers had more information than her and that she went into the meeting blind.  She claims that the managers had taken witness statements before the meeting with her and she wasn’t told this.  She feels that YP became insignificant.

Referring to her colleague, CD, the complainant said that she was nervous of him and that he was too close to the house manager.

Mr Kennedy referred to an email he sent to the two managers on Tuesday, February 8th, one week after the initial disciplinary investigation meeting.  In this email, Mr Kennedy requested copies of various company policies.  He said that he never received these policies.  Mr Kennedy referred to a page from the employee handbook which refers to a policy on Equality, Workplace Bullying, Harassment and Sexual Harassment.  He said that there is no evidence that the staff or managers received training on sexual harassment.

The complainant said that she was never informed that conversations were taking place “behind her back” about her and AL and that, in the context of their role dealing with vulnerable children, she wasn’t given any guidance on how to deal with someone who spoke inappropriately about her.

The complainant referred to an email sent by Mr Kennedy on February 10th 2022 to the managers who conducted the meeting on February 1st.  She said that she felt that the minutes of the meeting that were sent to her afterwards were not an accurate record of what occurred.  She said that her understanding is that she was discriminated against on the ground of sexual orientation and family status and she made the respondent aware of this in the amended note.

The complainant referred to the letter sent by Ger Kennedy to the regional manager on February 17th 2022, in which he asked her and the assistant director of services to withdraw from the investigation and for an independent investigation to be conducted into the way they questioned the complainant and AL at the meetings on February 1st.  The complainant also referred to the reply from the assistant director of services on February 22nd, in which she rejected Mr Kennedy’s allegation of unfairness. 

The next engagement with the complainant and the respondent’s managers was on March 7th, at a meeting over MS Teams at which she was represented by Mr Kennedy.  The complainant said that the approach of the managers was completely different at this meeting.  She said that, on this occasion, the allegation that she had sex with the complainant at work was put to her for the first time and questions were asked about sex outsider the workplace.

Although she was suspended from work on January 26th 2022, the complainant said that she wasn’t restored on the payroll until July 2022.  She had to contact the director of operations to ask for her wages to be paid.  She said that she had to explain to him how impoverished her life had become and that he agreed to pay her as a gesture of good will.  

From the time she walked out of the meeting on February 1st 2022, the complainant said that she felt that she had let her children down.  She said that she was financially responsible for them and she didn’t know how she was going to support them.  She said that she can’t explain what it’s like to have no income.  She couldn’t provide for her children and she said that she became depressed and had to take medication.  She said that she worried that her children would be taken from her.  She said that her family worried that she might take her own life.  She said that her children have suffered a great deal.

The complainant said that she felt a sense of shame, disgust and humiliation when she was blocked on social media.  She said that the only person she had for support was her colleague, AL.  No one from the respondent’s organisation checked on her, although they knew that she wasn’t being paid.  The complainant said that her sister died while she was suspended and she had no money to buy clothes for her children to attend her funeral.  She said that she hasn’t yet grieved for her sister and that she will never recover from what happened.

On April 13th, the complainant and AL made the respondent aware that they felt that they were the victims of sexual harassment.  They then participated in an investigated into their grievances, chaired by the barrister, Ms Sarah Daly.  The complainant said that she had no input into the selection of Ms Daly as the person to carry out the investigation.  She said that she went through a lengthy process with Ms Daly, but that she doesn’t accept the outcome.  Although she appealed against Ms Daly’s findings, the complainant said that she wasn’t given an opportunity to present evidence to the appeal.

The complainant said that she feels that her right to data protection was breached when the meeting that she attended on March 7th with Ger Kennedy was recorded and viewed by a member of staff.  She said that she feels that she has been degraded because the details of the young person’s report of January 27th has been uploaded on the respondent’s computer system.  She said that this document is available on the internal computer system in the organisation and a paper copy is on the young person’s file.  She said that she should not have been identified in the record of the complaint.

The complainant referred to the incident on January 25th 2022 when she was driving YP from school and was pulled in by a member of An Garda Síochána for using her mobile phone while driving.  She said that the following day, YP reported to her to the management and he also alleged that she and AL were having sex while on duty at night.  The complainant said that she believes that YP was under duress and that he wasn’t protected by the respondent.  She said that she and AL reported the conduct of CD to Tusla, following which he was suspended with pay, and then moved to a different house.

Cross-examining of the Complainant

Mr O’Mahony asked the complainant about the finding of a condom wrapper in the house where she worked in December 2021.  He asked her to consider the fact that there was no finding from the respondent’s enquiries into this matter.  The complainant agreed that there was no finding, but she said that staff in the house were asked if they knew if there was a relationship in the house between employees.  She said that she was given 10 minutes’ notice of a meeting at which she was asked if she was in a relationship with AL.  She said that her team leader told the manager of the house that she was in a relationship with him. 

Mr O’Mahony asked the complainant about the phone call from the regional manager on January 26th 2022.  The complainant had said that she was told that she wasn’t entitled to know about the young person’s allegation; however, Mr O’Mahony suggested that the manager was not permitted to give her the details on that day.  The complainant replied that the staff in the house knew about YP’s allegation.

The complainant said that she is not critical of the fact that an investigation had to be carried out, but she is critical of the process.  She said that the investigation should have been carried out by someone impartial.  She agreed with Mr O’Mahony that the outcome from the investigation was that there was no finding against her, but she said that her reputation was damaged by the investigation.  She couldn’t go to her mother’s 70th birthday.  She feels that she was sexually harassed by the way the investigation was carried out.

The complainant said that she has no issue with the phone call of January 26th 2022, but she has an issue with the time that the call was made.  Around 4.30pm or 5.00pm, YP made a disclosure to management, and by 6.30pm, she was suspended.  She questioned how she could have been suspended in the space of an hour.

Mr O’Mahony referred the complainant to the letter of January 27th 2022, from the regional manager in which the manager listed the issues of gross misconduct to which the complainant was required to answer.  The letter states that the complainant was suspended pending an investigation into four allegations of misconduct:

1.      Alleged sexual behaviour with the complainant while on night shift;

2.      Breach of her duty of care while engaging in unprofessional behaviour while on night shift;

3.      Use of a mobile phone while driving with YP;

4.      Unprofessional behaviour towards members of An Garda Síochána when questioned about the use of the mobile phone.

Mr O’Mahony pointed to the fact that the complainant was suspended pending an investigation into this conduct.  The complainant said that, in her opinion, she was already sanctioned.  She claims that she wasn’t given an opportunity until the meeting of March 7th 2022 to answer these allegations.  She said that she understands that, before it the policy was changed, the respondent had discretion to suspend an employee who is subject to a disciplinary investigation with pay. 

The complainant said that she received the details of YP’s disclosure on January 31st and she didn’t have an opportunity to prepare for the meeting on February 1st.  She said that her grievance in this regard was upheld.

Mr O’Mahony pointed out that, at the end of her investigation, Sarah Daly concluded that the respondent was correct to suspend the complainant, but that it was wrong to suspend her without pay.  The complainant replied that she disagrees with Ms Daly’s findings in this regard.

Mr O’Mahony referred to the fact that Tusla’s investigation into the complainant’s and AL’s allegations against CD did not uphold their allegations.  The complainant replied that CD was dismissed, although this wasn’t as on the instruction of Tusla.

The complainant objects to the fact that she was suspended on foot of a significant event notice regarding YP’s report.  Her view is that, to be suspended, she should have been sent a letter by Tusla telling her that an allegation of child abuse had been made against her.

The complainant disagreed that she was told on February 1st that statements would be taken from witnesses in the house.  She said that she was asked if she would be worried if other staff were interviewed.

The complainant agreed that she was offered the phone number of the regional manager if she needed to contact her in advance of the meeting on February 1st.  She agreed that she spoke to the regional manager on the morning of the meeting, regarding the colleague she had selected to accompany her.  She disagreed with Mr O’Mahony that she could have asked for the meeting to be postponed.  She said that she should have been told that she could ask for a postponement.

The complainant said that she takes issue with the nature of the questions asked at the meeting.  She asked, “why would they continue to ask me questions about having sex with the complainant when I replied, ‘no?’”  She said that the questions were harassing and that questions could have been asked in a way that wasn’t harassing.

The complainant said that the allegation about her and AL emerged because CD was spreading rumours about them.  She agreed that it was necessary for an investigation to be carried out, but she said that the questions should have been appropriate and they could have been asked once.  She said that she should have been asked if she wanted to take a break during the meeting.  She feels that she was held at the meeting under duress and against her will.

Referring to the condom wrapper found in the house in December 2021, Mr O’Mahony suggested to the complainant that it was her that raised the issue of an allergy to latex.  The complainant said that the managers brought this up at the meeting on February 1st, when, she said, they asked her if latex irritated her vagina.  The complainant said that Sarah Daly concluded that some of the questions asked at the meeting were not appropriate.  Mr O’Mahony said that Ms Daly concluded that the complainant was not sexually harassed at the meeting.

In her email to the respondent on February 4th, Mr O’Mahony said that the complainant made no reference to inappropriate questioning.  The complainant said that, by that stage, she had sought advice from SIPTU.  Mr O’Mahony asked the complainant why she didn’t refer to harassment or inappropriate questions in her email of February 4th.  The complainant replied that she is entitled to take her time, to try to recover and to prepare her responses.  She said that she referred to a breach of her constitutional rights.  Mr O’Mahony referred to Mr Kennedy’s email of February 8th 2022, in which he sought copies of procedures and he questioned the right of the respondent to suspend the complainant and AL without pay.   In this email, Mr Kennedy made no reference to harassment or inappropriate questioning.  The complainant said that Mr Kennedy’s email refers to unfair procedures.

Mr O’Mahony referred to the email from Mr Kennedy to the regional manager on February 10th 2022 in which he challenged the notes taken at the meetings on February 1st.  The complainant said that she and AL put together their version of what occurred at the meetings and both versions were accepted side by side with the respondent’s notes. 

Mr O’Mahony referred to an undated letter from the regional manager and the assistant director of operations, in response to the complainant’s letter of February 4th.  Mr O’Mahony suggested that, in this letter, the complainant was given a response to the issues she raised on February 4th.  The complainant said that the investigation into YP’s claim should have been conducted in accordance with agreed terms of reference.

Mr O’Mahony referred to the meeting on March 7th 2022 over Zoom, at which the complainant was represented by Mr Kennedy.  The complainant agreed that the meeting was recorded.  She claims that the recording was accessed by other staff.

Mr O’Mahony referred to the outcome of the meeting which was issued to the complainant on March 14th.  The allegation of unprofessional conduct and gross misconduct arising from YP’s report that she was heard having sex with AL was not upheld.  The allegations concerning her use of a mobile phone and unprofessional conduct towards a member of An Garda Síochána was considered to be a disciplinary matter.  The complainant said that she asked for the disciplinary hearing to be delayed, because she and the complainant had submitted grievances and she didn’t want both processes going on at the same time.  She agreed that this delayed her ability to return to work, but she said that it should not have delayed her reinstatement on the payroll.

The complainant agreed that the grievance investigation concluded on August 9th 2022.  She said that the disciplinary investigation was delayed as a result.  She said that she and AL didn’t know it would take so long and that there were issues outside their control.

The complainant’s opinion is that Sarah Daly was not independent, although she approved of how she dealt with the investigation.  She said that she doesn’t understand how she reached the conclusions she reached.  The complainant suggested that Ms Daly didn’t ask the questions necessary to dispel the allegations and that she is “gob-smacked” that the questions were not asked. 

Mr O’Mahony referred to paragraph 102 of Ms Daly’s report into the complainant’s grievances which refers to the respondent’s decision on the evening of January 26th 2022 to inform her and AL about YP’s allegations.  Ms Daly concluded that it was appropriate for both employees to be suspended.  The complainant disagrees with Ms Daly’s conclusions and she claims that she was treated differently to CD who was moved to a different house and then suspended with pay.  She said that she was only paid because she asked to be paid.

Mr O’Mahony referred to paragraph 106 of the report in which Ms Daly concluded that, on January 26th 2022, “there was a limit to what information could be provided at the time.”  He also referred to paragraph 108 where the complainant addressed her removal from the work WhatsApp group and from the house roster.  She agreed that these steps were necessary but she disputed the requirement to upload documents under the heading of a child protection notice onto the respondent’s computer system.  She argued that a child protection notice is a referral of a possible child protection issue.  While Ms Daly was satisfied that employees were aware of the requirement for confidentiality, the complainant replied, “All I can say is that my name was associated with the allegation.”

Mr O’Mahony referred to the entitlement of young people to bring forward complaints and he noted Ms Daly’s remarks about this at paragraph 109 of her report:

“I am satisfied that the team would have been aware that young people can misunderstand situations and that their allegations may well not be borne out, even if the young person is genuine in bringing the complaint forward.  Therefore, I am satisfied that even though staff members were aware of aspects of the allegation and likely presumed the allegation related to Ms O’Driscoll, I am also aware that the staff members understood that, at its height, this was a young person allegation – and not something that had been investigated or established.”     

The complainant responded that she didn’t know what people knew and what information was being circulated about her.

Ms Daly found that the time frame from January 26th until the investigation meeting on February 1st was too short.  The complainant replied, “She had to find some little bit in our favour.”

Mr O’Mahony referred to paragraph 117, where Ms Daly also found in favour of the complainant, and her concern that she was not informed of her right to have a union representative at the disciplinary investigation meeting.

At paragraph 119 of her report, Ms Daly concludes that, although the letter of January 27th inviting the complainant to the disciplinary investigation meeting was “badly worded,” it is evident that no decision had been reached regarding the gross misconduct being investigated.  The complainant replied that it may be obvious now, but it wasn’t then.

Referring to Ms Daly’s conclusion that the complainant should have been given breaks during the meeting on February 1st 2022, the complainant said that, at the meeting, she was “frightened beyond belief.”  She said that two people were asking her questions for three hours and that they didn’t manage the meeting.

At paragraph 122, Ms Daly accepted that the questions that were asked at the meeting were of a personal nature and that this was uncomfortable for the complainant.  In response, the complainant said that there was no necessity to ask such questions and that the managers “pushed the questions too far.”

The complainant said that, at the meeting, she should have been informed that two witnesses had already been interviewed.

At paragraph 129 of Ms Daly’s report, she noted that the complainant raised an issue with the wording of the respondent’s conclusion to the disciplinary investigation:

“…we find that the evidence is insufficient to prove an allegation on the balance of probabilities.”

The complainant replied that the language of this conclusion does not say that she AL were innocent of the allegations.

Mr O’Mahony noted that the complainant appealed against Ms Daly’s findings and that this resulted in a further delay progressing the outstanding disciplinary investigation into the allegations that she was driving while using a mobile phone and that she was unprofessional in response to being stopped by the Gardaí.  Following the appeal, which was conducted based on written submissions,  the director of operations concluded that they had not been harassed or sexually harassed.  The complainant replied, “I was sexually harassed.  There was no need for the questions to be asked.  My sexuality was invaded and the questions went too far.”  She said that the questions asked of the witnesses also went too far.

Mr O’Mahony noted that, while the majority of the complainant’s grievances were not upheld, she was invited to return to work.  She said that she couldn’t go back and that she didn’t trust the respondent.

It is the complainant’s position that she has been harassed because she is female, single, heterosexual and because of her family status.  She claims that if she was homosexual, she wouldn’t have been suspended without pay.

Evidence of the Complainant’s Colleague, Mr Loughran

Over two days, on March 30th and June 1st 2023, AL gave evidence of the investigation arising from YP’s report to the house manager on January 26th 2022.  This is a summary of his evidence, as it relates to the experience of the complainant.

AL commenced his direct evidence by referring to the telephone call to him from the regional manager on January 26th 2022.  He said that he was informed that he had been mentioned in a child protection issue and that he was suspended without pay and that a meeting would take place to investigate the issue.  AL said that he was dumb founded.  He had only met the regional manager once on a Zoom call and he said that he was unsettled and distressed by the call.  An hour after the phone call, AL said that he got an email, which was copied to the director of services.  He wasn’t provided with any details of the complaint.

On January 28th 2022, AL said that he got a letter from the regional manager asking him to attend a disciplinary meeting on February 1st.  He said that the reference in the letter to “gross misconduct” made him think that he had been found guilty.  

On January 31st, AL received an extract from the young person’s report to the house manager five days previously.  The extract simply states that YP reported that AL and his colleague “have been engaging in inappropriate intimate relations when on shift.”  AL was upset because this report was uploaded to the organisation’s computer system which meant that staff from middle management upwards had access to it.  A copy was placed on the young person’s file which is available to social care workers and managers in the house.

While AL received a copy of the extract from the report of the young person, his full disclosure was not provided to AL until it was given to Sarah Daly, when she was investigating AL’s grievance in July 2022.

At the meeting on February 1st, AL said that the director of services explained that she would ask questions that she had prepared.  AL was accompanied by a colleague, but he said that he hadn’t considered that his colleague would have to take notes.  AL didn’t get a copy of the questions prepared by the director of services.  He said that he was very nervous at the meeting and he felt that the managers were hostile towards him, but not towards the colleague who accompanied him. 

At the meeting, AL said that he was asked “what was my take on the allegation?”  He told the managers that a co-worker, “CD,” told the young person about his private life.  He said that he told the managers that CD started a rumour about him and MOD and that this is how YP came to make the report about them having sex.  The director of services said that she thought that CD was a friend of AL’s and that he had recommended him for the job with the respondent.  AL said that he felt that he wasn’t being believed.  He said that he became confused when the managers both asked questions and spoke over each other and spoke over him.

AL said that he was never asked if he had sex with MOD at work.  He was never told what date on which YP claimed that he had sex with MOD.  He was asked if he touched her face or rubbed her leg.  He was asked about a staff night out in Cork, with MOD, CD and another employee.  He was asked if he had sex with MOD in Cork and in Carlow.  He said that the regional manager asked him if it would worry him if she phoned the hotel in Cork to find out if they shared a room.  He said that he was asked if he had a sexual relationship with MOD.

In further questions, AL said that he was asked if his relationship with MOD was different to his relationship with other colleagues.  He was asked by the managers if he would be worried if they spoke to his colleagues.  He was asked if he had discussed the allegations with his colleagues and he told them that he spoke to CD about a personal issue.

AL said that expected to have to answer questions about the workplace, but not about his private life.  He said that it seemed that the managers were trying to catch him out and he felt that he wasn’t believed.  When he spoke in defence of his character and told the managers that he was highly regarded by his peers, he claims that he was told that that wasn’t what they were here to discuss.  He said that he hasn’t recovered from having his personal life scrutinised. 

AL then referred to a bi-weekly team meeting on January 13th 2022 on Zoom for staff in the house where he worked.  He said that, at the meeting, the house manager informed staff that, on December 23rd 2022, a condom wrapper had been found in the house.  She told the staff that she and the regional manager would be speaking to them about it.  AL said that he was one of the first to be asked to attend a meeting, which he thought was informal.  He was asked if the condom wrapper was his, and he replied, “no.”  He was asked if he knew about any inappropriate relations among staff members and, again, he replied, “no.”  When he was asked if he would like to say anything else, AL said that the told the interviewers that he didn’t use condoms.

At the disciplinary meeting on February 1st, the issue of the condom wrapper was brought up again.  The regional manager said that she thought it was unusual at the meeting on January 13th, for AL to discuss his choice of contraception.  AL said that the meeting became aggressive and that the regional manager said, “just admit it, you were both on duty.”  AL said that he repeated that the condom wrapper wasn’t his.  He said that he wasn’t on duty on December 22nd, because, when he went to the house on December 21st, he was told not to go in because of an outbreak of Covid-19.  He said that he wasn’t in the building that week.

At the meeting on February 1st, AL said that he wasn’t aware that the managers had already taken statements from two witnesses.  On February 17th, he said that he learned that the house manager and CD had been interviewed twice before his interview on February 1st.  From their witness statements, he discovered that most of his colleagues knew about YP’s allegations before him.  He said that, by asking the witnesses leading questions, the director of services and the regional manager contributed to the spreading of rumours about him and MOD.  He said that his humiliation was compounded when he learned what his colleagues said about him.  He said that he was never given an opportunity to rebut what the witnesses said. 

When he received the note of the meeting of February 1st, AL said that it was not accurate and he edited it and colour-coded it to identify his corrected responses.  He said that his record was accepted “to stand side by side” with the management’s note.

At a follow-up meeting on March 7th, AL was represented by Mr Kennedy.  This meeting took place over Microsoft Teams and AL said that, compared to how he was treated on February 1st, at this meeting, he was treated with respect.  At the meeting, he was asked if he had sex with MOD while on duty in the house where he worked.  No reference was made to his relationship with MOD outside work.  

The outcome to the disciplinary investigation was that there was insufficient evidence to prove that AL and MOD were having sex while on duty.  Despite this, AL said that he thought that “they thought I was guilty but couldn’t prove it.”  He said that he feels that he wasn’t exonerated.

When he initiated a grievance into how he was treated during the disciplinary investigation, AL received a copy of the full statement that the young person gave to the house manager on January 27th 2022.  He said that he also found out that two other colleagues had been interviewed, but he didn’t get a copy of their witness statements.

Cross-examining of the Complainant

In response to cross-examining by Mr O’Mahony on behalf of the respondent, AL said that he met the regional manager on just one occasion before the meeting of February 1st 2022.  AL suggested that the regional manager was biased from the outset and that she believed the report of the young person.  Mr O’Mahony asked AL how this could be true when the allegation against AL and MOD was not upheld.  AL repeated his assertion that the regional manager believed YP.

AL said that he doesn’t accept that the regional manager couldn’t disclose to him the details of the report of YP because she was waiting for direction from Tusla.  He disagreed that the regional manager gave him the details of the report on January 28th 2022.  He said he was led to believe that a child protection issue had been reported.

AL said that he doesn’t know why the significant event notice had to be uploaded to the organisation’s computer record and shared with colleagues.  While he wasn’t identified in the notice, the fact that he was suspended meant that he was connected to the event.  He said that he was crossed off the roster and suspended without pay.  When Tusla reviewed the allegation, they didn’t consider it a safe-guarding issue and it became a conduct issue.  AL said that he doesn’t think he should have been suspended.

Mr O’Mahony referred to the letter of January 28th from the regional manager in which she invited AL to attend a disciplinary investigation on February 1st 2022.  AL said that the reference in the letter to “gross misconduct” indicated a bias against him.  He said that he was confused by the letter, although he didn’t contact anyone to seek clarification.  He said that he looked for clarification at the meeting on February 1st.

AL agreed that, on January 31st, he received an extract from YP’s report and he agreed that the extract related to his conduct. 

AL said that the meeting on February 1st lasted for “two hours and a bit” and that he was accompanied by a colleague.  He said that he has an issue with the failure of the management to give him copies of the statements that they took from witnesses before they met with him.  He said that he only got these statements when his union representative intervened.  He said that information in the statements was used against him at the meeting.  Mr O’Mahony pointed out that the investigator, Sarah Daly concluded that this was not the case.  AL said that he disagrees with Ms Daly’s findings in this regard.

AL said that it wasn’t appropriate to ask humiliating and degrading questions or to ask him about his personal life and if he had sex with MOD outside work.  He said “they had no right to ask me if I was in a sexual relationship” with MOD.  He disagreed that the question, “did you have sexual relations with MOD in the unit?” was asked.  He said, “This question wasn’t put to me.”  Mr O’Mahony asked AL if it would have made sense for him to say that he didn’t have sex with MOD in the unit.  AL didn’t reply.

Mr O’Mahony pointed out that, in her report, Ms Daly concluded that the questions that were asked at the meeting on February 1st were appropriate.  AL replied, “Ms Daly doesn’t get to decide what I find degrading or humiliating.”

Mr O’Mahony referred to AL taking issue with being asked about social activities with MOD and he suggested that it was necessary to establish if he was in a relationship with her.  AL replied, “I’m entitled to my privacy.”  Mr O’Mahony said that it would have been impossible to investigate YP’s allegations without asking that question; however, AL disagreed.

After a short break, Mr O’Mahony moved to ask AL questions about the investigation carried out by Ms Sarah Daly, which commenced in May 2022.  In his submission requesting an investigation, AL reported that he was sexually harassed by his colleague, who we have referred to as “CD.”

AL said that he “showed up unannounced to Tusla” and made a complainant about the respondent and CD.  He said that CD was suspended with pay.  Mr O’Mahony referred to the fact that, while AL was suspended without pay, he was reimbursed.  AL said that this “didn’t repair the damage.”  He said that, when an allegation is made, there should be internal screening before an employee is suspended.

Mr O’Mahony asked AL to consider certain paragraphs in Ms Daly’s report and her findings that he was treated respectfully by the regional manager during phone calls on January 26th and 27th 2022, when she informed him that YP had made an allegation of sexual misconduct.  Ms Daly noted that AL was provided with an extract of YP’s report within 48 hours of being suspended on January 26th, and she accepted that the provision of limited information on January 26th was stressful and frustrating.

AL disagreed with Ms Daly’s findings that the information provided to staff in the house where he worked was reasonable and that he wasn’t identified in the documents.  He said that staff were aware that he and MOD were suspended.  Ms Daly also concluded that it is not normal for a disciplinary investigation to be grounded in terms of reference.  AL disagreed with this and said that the investigation warranted terms of reference.

Mr O’Mahony noted that Ms Daly found that the meeting on February 1st was probably convened too quickly to allow AL to get advice.  She also concluded that, in the letter of January 28th, he should have been advised of his right to be represented by a union official, although she noted that this is contained in the disciplinary procedure.

Ms Daly concluded that the reference to “gross misconduct” in the letter of January 28th was not an indication of bias.  AL disagreed.

Mr O’Mahony referred to Ms Daly’s conclusion in which she accepted that AL found the meeting on February 1st difficult and upsetting: “I consider that the reason for this was due to the seriousness of the allegation and the type of questions that required discussing.”  Mr O’Mahony said that “no one is suggesting that you were not offended” but he said that the basis of AL’s allegation regarding discrimination on the ground of sexual orientation is based on the fact that he was suspended without pay.

Ms Daly did not find that the notes of the meeting of February 1st were “sanitised” as AL alleged.  AL said that he and MOD were permitted to include an alternative note of the meeting.  Mr O’Mahony said that this does not infer that the original notes were “sanitised.”  AL replied that he stands by his allegation that the notes were sanitised.

Ms Daly had no issue with the meeting with two witnesses taking place before the meeting with AL on February 1st and she noted that nothing in these witness statements was put to AL at the meeting on February 1st.

Mr O’Mahony referred to the outcome from the disciplinary investigation which was issued to AL on March 11th 2022.  The allegation that he engaged in sexual conduct with MOD while on shift in the house was not upheld.  AL said, “I didn’t see it like that.”  He said that the respondent concluded that they had insufficient evidence to prove that he engaged in sexual conduct while on duty.  He said that he doesn’t think that there was any evidence.

On April 13th, Mr Kennedy submitted 48 grievances for investigation in accordance with the respondent’s grievance procedure.  Mr O’Mahony noted that only three of the grievances were upheld.

AL agreed with Mr O’Mahony that he made complaints to Tusla about CD and his relationship with YP.  He said that Ms Daly did not investigate his allegations about the conduct of CD.  Mr O’Mahony informed AL that Tusla decided that the allegation did not meet the standard to be considered a child protection issue and did not investigate the issue.  AL replied that he was informed that the respondent conducted an investigation and that CD was dismissed.

Mr O’Mahony asked AL if it is his position that the questions asked at the meeting of February 1st 2022 constituted conduct of a sexual nature.  AL replied, “yes.”  Mr O’Mahony said that, at the meeting, there was no request for sexual favours and no sexual advances were made.  AL replied that he was put under pressure to answer questions.

For the respondent, Mr O’Mahony provided a comprehensive submission which I have summarised below.

The Disciplinary Investigation

Mr O’Mahony referred to the fact that the respondent had a policy to suspend employees without pay, pending the outcome of a disciplinary investigation.  He said that, when they got legal advice about this in March 2022, the practice ceased.  In July 2022, the complainant was reimbursed for the wages that she wasn’t paid during her suspension.  When CD was suspended in early April, he was suspended with pay, because the policy of suspension without pay had ceased at that stage.  The fact of her suspension without pay was not related to the complainant’s sexual orientation as a heterosexual woman and the fact of CD’s suspension with pay was not related to that fact that he is gay.

Mr O’Mahony said that, on foot of the report YP made to the house manager on January 26th 2022, the respondent was statutorily required to conduct an investigation.  A potential child protection issue had been raised and had to be taken seriously.  On January 31st, the complainant was provided with an extract of YP’s statement.  This could not be provided before the respondent received a direction from Tusla to proceed with an investigation.

The questions that the managers asked the complainant at the meeting on February 1st were related to a report of sexual activity between the complainant and a colleague.  The questions related to the complainant’s relationship with AL were, Mr O’Mahony submitted, entirely necessary, as the answers demonstrated the credibility or otherwise of the complainant.  The questioning itself was not conduct of a sexual nature, but the questions had to be asked to allow the investigation to be conducted.  Mr O’Mahony submitted that the questions that the complainant alleges were asked at the meeting on February 1st were not asked as he alleged, or, were not asked at all and he asked me to take note of the respondent’s version of the minutes of the meeting which were included in their book of documents for the hearing.

The complainant alleged that YP’s allegation was taken as a fact, but Mr O’Mahony countered that this could not be the case when the complainant was exonerated.

Regarding the witness statements, Mr O’Mahony said that it is of no consequence when they were taken and that most of the meetings with witnesses took place after the meeting with the complainant on February 1st.

The allegation that the investigators “sanitised” the notes of the meeting of February 1st or that evidence was supressed is countered by the decision of the investigators to accept the complainant’s version of the meeting to sit alongside their record. 

The meeting of February 1st was the subject matter of comprehensive grievance investigation undertaken by a very experienced expert employment law barrister, Sarah Daly BL.  The issues raised regarding the meeting, and other matters raised in this complaint were not upheld.  The report concluded that the investigation process was adequate and did not discriminate, harasses, sexually harass, or victimise the complainant.  The report did make some criticisms of the process invoked by the respondent, but such criticism was of a minor nature, and did not impugn the disciplinary investigation. 

Mr O’Mahony submitted that the questions posed to the Complainant during the meeting were necessary and appropriate.  The allegations made by the complainant against the managers who chaired the meeting are strenuously denied and, in the investigation report of Sarah Daly were found to be without merit.

It is the respondent’s position that, at the meeting of February 1st, the complainant did not raise a concern of a child protection nature related to the conduct of CD.  If she ever had concerns, she had a responsibility to bring these to the attention of the management immediately, which she did not do.

The Employer’s Response to the Complainant’s Allegations

The respondent had a statutory duty to carry out an investigation arising from the report of YP on January 26th 2022.  The information received by the respondent was considered as a child protection issue and was treated in accordance with Tusla’s protocols for such matters.  Tusla confirmed that they were satisfied for the respondent to proceed with an investigation.  It is accepted by the respondent that the questions that were asked at the meeting on February 1st 2022 were difficult and uncomfortable for the complainant, but the investigators were obliged to conduct an investigation that they could stand over.  The outcome that there was insufficient evidence to prove the allegations demonstrates that the process was fair and of benefit to the complainant.

The complainant alleged that the respondent ignored or supressed a child welfare concern and this was repeated by the complainant and AL when they made a report to Tusla in April 2022.  The respondent strenuously denies that, during the disciplinary investigation meeting on February 1st the complainant raised a welfare concern about CD and his relationship with the young person.  It is denied that this issue was suppressed or that notes were altered.  This issue was first raised with the respondent by Tusla following the visit to their offices by the complainant and her colleague on April 8th 2022.  No record of the meeting of February 1st supports this allegation.  This allegation was not raised at the second disciplinary meeting on March 7th.   The only concern raised by the complainant during the investigation was that CD was sharing personal information about his life with YP.  It is the respondent’s position that this does not meet the criterion for a child protection report.

The complainant alleged that her right to confidentiality was breached in the way that documents were uploaded onto the respondent’s internal computer system.  The risk assessment that was drawn up to support the young person documented that he had reported that two staff members were having sex while on duty.  The employees were not identified in the document.  The young person availed of the support of two members of the team in his house to discuss what he had disclosed and how it was affecting him.

A number of employees of the house were interviewed as part of the investigation.  These employees are bound by their duty of confidentiality and there is no evidence that there was a breach of the complainant’s right to confidentiality.

Harassment

This relevant legislation for adjudication of this complaint is section 14A of the Employment Equality Act 1998 (“the 1998 Act”), a new section inserted by the Equality Act 2004, specifically addressing the issue of harassment and sexual harassment at work.  Harassment is defined at subsection (7)(a)(i) and sexual harassment is defined at subsection (7)(a)(ii):

(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

At section 14A(1) of the 1998 Act, harassment and sexual harassment are categorised as discriminatory conduct.  While harassment may discriminate against a person on one of the nine discriminatory grounds, sexual harassment is discrimination on the single ground of gender.    

It is the complainant’s case she was sexually harassed because no one on the respondent’s management team did anything to address her allegations about the “sexually driven” conversations of her colleague, CD.  Secondly, under this heading, she claims that the conduct of the managers at the disciplinary investigation meeting on February 1st 2022 and the intrusive line of questioning pursued by them amounts to harassment and sexual harassment.

Discrimination

Section 6(2) of the 1998 Act sets out the nine discriminatory grounds.  For our purpose in this complaint, we are concerned with three subsections:

(a) The gender ground.  The complainant claims that she was subjected to discriminatory treatment on the gender ground as a result of being exposed to sexual harassment.

(c) The family status ground.  In the way the managers conducted the disciplinary investigation meeting with her on February 1st 2022, the complainant claims that she was discriminated against on the family status ground because she is a single mother of two children.

(d) The sexual orientation ground.  The complainant compares herself to a homosexual colleague, “CD,” who, to facilitate an investigation into this conduct, was suspended with pay.

Victimisation

Victimisation is defined at s.74(2) of the 1998 Act as “dismissal or other adverse treatment of an employee” in response to making a complaint of discrimination or being involved in a complaint in any way such as being a witness or representing another person who makes a complaint.  It is the complainant’s contention that, as Ger Kennedy of SIPTU notified the respondent that she had been the subject of discriminatory treatment, her unpaid suspension was an act of victimisation.

The Burden of Proof - Establishing that Discrimination has Occurred

The Equality Act 2004 inserts a new section, 85A, into the 1998 Act:

85A – (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 her or her, it is for the respondent to prove the contrary.

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination lead to a presumption that discrimination has occurred.  For the complainant to succeed in her complaint, the first hurdle she must overcome is to set out the basic facts that will lead me to assume that, because she is a heterosexual woman and a mother, she was harassed, sexually harassed and victimised and treated in a manner that was intimidating, humiliating, offensive, hostile or degrading.

Initial Findings

On November 1st 2023, at the end of the fourth day of evidence, I informed that parties that I had taken time to review their submissions and the evidence of the complainant and AL and that I wished to set out my position on whether the facts had shown that the complainant was discriminated against.  On behalf of the respondent, Mr O’Mahony asked me to make a decision on the evidence of the complainant.  He submitted that the limit of her allegations of discrimination is that the questions asked at the disciplinary investigation hearing strayed too far.  He argued that this cannot be grounds for a complaint of discrimination.

Before concluding the proceedings on November 1st, I expressed my initial concern that the complainant had not discharged the burden of proof to demonstrate to me that she was discriminated against and that, on this basis, her complaints would not be upheld.  I set out my views that the issues raised by the complainant were grievances that had been fully and adequately addressed by the independent investigator, Sarah Daly, and that her complaints of discrimination were not well founded. 

In response to my initial findings, on December 18th 2023, Mr Kennedy sent me a supplemental submission.  On behalf of the respondent, Mr O’Mahony sent a reply on January 19th 2024.  I have considered all the evidence presented over four days of hearings and I have also considered the written submissions.  I will now proceed to examine the facts submitted in evidence and to set out my conclusion that the onus of proof that rests with the complainant to demonstrate that she was discriminated against has not been discharged.

Examination of the Facts

1.      Discrimination on the gender ground arising from sexual harassment due to alleged conversations about sexual matters initiated by CD.

We know from AL’s evidence that he and CD were friends and that AL introduced CD to the respondent, who then employed him as a social care worker.  The complainant and CD were work colleagues and were assigned to the same house, from July 2021 until January 2022, when the complainant was suspended.  The complainant raised no concerns about CD’s alleged habit of talking about sex during this six-month period.  The complainant is a qualified social care worker and a mother of teenagers and it is my view that someone in her position working in a social care environment with responsibility for young people would have reported a concern about sexualised conduct on the part of a colleague, or a concern that they themselves were sexually harassed by the behaviour of a colleague.  I find the complainant’s failure to report the alleged conduct of CD to be fatal to her argument that she was sexually harassed.  As she did not report any allegations of sexualised conduct on the part of CD to the management, there is no basis to her assertion that the respondent failed to address that alleged misconduct.

2.      Discrimination on the gender ground arising from harassment and sexual harassment due to the questions asked by the managers at the disciplinary meeting on February 1st 2022.

I have no doubt that the disciplinary investigation meeting was stressful and embarrassing for the complainant.  She was on notice that a young person in her care had reported that he heard her and a colleague having sex when they were on duty overnight.  To establish if there was any substance to YP’s allegations, the managers sought to establish if the complainant was in a sexual relationship with AL.  She found this intrusive and an invasion of her privacy.  The objective of the managers who were asking the questions was to find out if the young person’s allegation was true and any reasonable person in the same circumstances as the complainant would have felt under pressure and stress.  It was logical that the questions were focused on the possibility that the complainant and AL were in a sexual relationship which was also carried on in the workplace.

We know that sexual harassment is defined as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature.”  The complainant’s case is that the questions were unwanted “verbal conduct of a sexual nature” which had the effect of humiliating her.  It is reasonable to conclude that any employee who is the subject of a disciplinary investigation into their conduct would find themselves on the receiving end of unwanted and embarrassing questions.  The subject matter of this investigation was whether the complainant and AL were having sex while on duty.  It would have been impossible for the managers to carry out an investigation without causing some embarrassment and humiliation for the complainant.  I am satisfied that the questions put to the complainant at the meeting on February 1st were necessary and reasonable.  The complainant’s embarrassment and humiliation are also reasonable.  While I accept that the questions were unwanted, it is my view that the pairing of “unwanted verbal conduct of a sexual nature” with “unwanted embarrassing questions about sexual activity with a work colleague” is not reasonable and that the actions of the respondent’s managers at the meeting on February 1st 2022 are not encompassed by the meaning of harassment or sexual harassment.

3.       Discrimination on the family status ground, arising from the fact that the complainant is a parent.

In her evidence, the complainant described the distress that she suffered because of being involved in an investigation of a child protection nature.  She described the effect this had on her children and the worry and stress caused to her family.  It was distressing to listen to her evidence, and I was very affected by the proximity of the events to her mother’s birthday and particularly, the death of her sister.  I accept that, on a human level, she has been through a very distressing time.

To stand up an allegation of discrimination on the ground of family status, a complainant must show that they were treated unfavourably because of their status.  I am satisfied that the fact of the complainant being a mother had no bearing on how the investigation into YP’s complaint was investigated and I find that her allegation of discrimination under this heading is misconceived.

4.      Discrimination on the ground of sexual orientation, arising from the fact that, in January 2022, the complainant was suspended without pay, and that, later in 2022 a colleague, CD, who is gay, was suspended with pay.

The respondent’s policy of suspending employees without pay pending the outcome of a disciplinary investigation ended in March 2022, when they received advice that this was unfair.  The complainant’s evidence of the effect of having no wages between February and July 2022 made for very painful listening and I accept that the impact on her was considerable.  The respondent provided no proper explanation for the delay in restoring her wages, and no explanation regarding why she was treated differently to her colleague, AL, who had his wages restored in March 2022.

I note that, when she presented this issue as a grievance in April 2022, the complainant described the respondent’s decision as “disproportionate and not reflective of practice with other employees…”  This aspect of her grievance was upheld in Sarah Daly’s report.  I am satisfied that the decision to suspend the complainant without pay was disproportionate and unfair, but I can find no basis for a finding that, because a gay man was later suspended with pay, that the decision in January 2022 was based on the fact that the complainant is a heterosexual female.  It is apparent t me that, anyone finding themselves the subject of a disciplinary investigation after February 2022 would have been suspended with pay.

5.      The complainant alleges that she was victimised, by being suspended without pay, and that this was in response to her union representative notifying the respondent that she had been discriminated against.

On January 26th 2022, the complainant was informed by telephone that she was suspended without pay, pending an investigation into an allegation of misconduct.  Mr Ger Kennedy of SIPTU wrote to the respondent by email on February 8th 2021.  In that email, Mr Kennedy challenged the respondent’s decision to suspend the complainant without pay.  He made no mention of discrimination.  Mr Kennedy wrote again on February 10th, and, in this email, he complained about the notes of the meeting of February 1st, which, he suggested, were intended to limit the exposure of the company to claims of discrimination on the ground of gender and family status.  This is the first mention of discrimination on behalf of the complainant, and it occurred almost two weeks after she was suspended without pay. 

Based on the facts, I am satisfied that the decision on January 26th to suspend the complainant without pay was an error which was rectified, albeit too late to avoid considerable hardship for her.  I find no evidence to suggest that suspension without pay was in retaliation for Mr Kennedy’s suggestion on February 10th 2022, that the respondent may have a complaint of discrimination to answer. 

Consideration of the Legal Precedents

I wish to briefly address the legal precedents to which Mr Kennedy referred in his submission of December 18th 2023.

In Campbell Catering and Aderonke Rasaq[1], Ms Rasaq was dismissed for stealing bananas and the respondent was unable to produce witnesses to support its decision to terminate her employment for this reason.  In the absence of evidence to the contrary, the Labour Court concluded that her dismissal was an act of discrimination on the race ground.  In the instant case, I have concluded that it is not necessary for the respondent to present evidence, because it is my view that the complainant’s evidence is not sufficient to show that she was discriminated against. 

In his decision in Ntoko and Citibank[2], the chairman of the Labour Court, Mr Duffy, referred to a previous decision, Flexco Computer Stationary and Kevin Colter[3], where it was held that, 

“The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v Southern Health Board [2001] ELR 201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination.  If those two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."

It is apparent from this that the shifting of the onus of proof to the respondent is conditional.  The complainant must establish the primary facts and I, as the adjudicator, must be satisfied that they are sufficient to raise an inference of discrimination.  The evidence given by the complainant demonstrated clearly that she was distressed by the disciplinary investigation that resulted from the complaint of the young person.  She also suffered financially when she was suspended without pay.  This evidence was undisputed; however, to show that she was discriminated against, the complainant must present evidence that the difficulties she experienced were rooted in the fact that she is a female and heterosexual and a parent. 

Conclusions

The issue for me to determine is, if, on the basic facts, the complainant has shown that,

1.      She was discriminated against because the respondent failed to address an allegation that a colleague engaged in conversations about sex at work.

2.      That she was harassed and sexually harassed by the questions that were asked at the disciplinary meeting on February 1st 2022.

3.      In the initiation of a disciplinary investigation into an allegation of misconduct, this this discriminated against the complainant on the ground of her family status.

4.      In the way that she was suspended without pay in January 2022, that this treatment was because the complainant is heterosexual.

5.      That, by being suspended without pay, she was victimised for raising a complaint of discrimination.

I note the findings of the independent investigator, Ms Sarah Daly in her report of August 9th 2022.  Ms Daly identified certain unfair treatment of the complainant by the respondent.  She concluded that she should not have been suspended without pay and that this amounted to a disciplinary sanction.  She also concluded that she should have been given more time to prepare for the disciplinary investigation meeting on February 1st and that she should have been reminded that she was entitled to be represented by a union official.  Having considered all the evidence, it seems to me that, under the heading of discrimination, the complainant is attempting to revive her grievances which have been adequately ventilated.  I find that she has not satisfied the “two limbs of the test” as it was described in the Flexco case, and that the basic facts are entirely insufficient to establish that she was discriminated against.  I find that her complaints that she was harassed, sexually harassed and victimised are misconceived and without substance.

I find that the complainant has not established facts from which an inference can be drawn that she was discriminated against on the grounds of gender, sexual orientation or family status as she alleged.  For this reason, the burden of proving that discrimination did not occur does not shift to the respondent.  I decide therefore, that this complaint is not well founded.

Discrimination, harassment, sexual harassment, burden of proof