Complainant

Respondent

Parties

Siobhan McNally

Rotunda Hospital

Representatives

Self-represented 

Judy McNamara, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00059780-001

03/11/2023

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

CA-00059780-002

03/11/2023

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

CA-00059781-001

03/11/2023

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

CA-00059835-001

06/11/2023

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

CA-00059835-002

06/11/2023

The complainant was an employee of the respondent from March 2003 until May 2019, when her employment was terminated due to ill health.  The hospital’s pension scheme provides for an ill health early retirement pension, and the complainant has been in receipt of a pension since May 2019.  At the time of her retirement, she was in a Grade V role of Data Informatics and Reporting Officer and she reported to the Manager of the Clinical Activity Reporting Unit.  The complainant’s entitlement to an occupational pension scheme is not an impediment to her taking up employment elsewhere, although she has not done so. 

Between February 2019 and November 2023, the complainant submitted more than 30 complaints to the WRC concerning grievances that arose before she retired and the events that led to her employer’s decision to terminate her employment.  In 2019 and 2020, I issued decisions on 12 of these complaints and, in 2023, more than a dozen decisions were issued by another adjudicator.  The complainant now argues that she is not retired, but that she is continuing a period of suspension imposed on January 14th 2019, pending an investigation into her failure to carry out a reasonable instruction. 

In these complaints, under the headings of the Employment Equality Act 1998 and the Safety, Health and Welfare at Work Act 2005, the complainant alleges that she was discriminated against on the gender and disability ground, and that she has been penalised by being compelled to accept an ill health, early retirement pension.

On the form she submitted to the WRC on November 3rd 2023, the complainant claims that the date of discrimination is the date on which she received her most recent pension payment, October 31st 2023.  She alleges that she was discriminated against as follows:

1.      Harassment by imputing a disability to a female.

2.      Harassment by devaluing the right of a female to occupation and employment.

3.      Less favourable treatment influenced by a disability.

4.      Discrimination arising from the failure of the respondent to seek the complainant’s consent to her retirement.

5.      Victimisation on gender and disability grounds because the complainant is menopausal.

6.      Discrimination on the ground of gender, because the complainant is not permitted to work for the respondent and she claims that she is not permitted to take up employment elsewhere.

7.      The pay of a suspended worker is greater than the amount that the complainant receives in pension.

8.      The complainant alleges breach of promise arising from the respondent’s decision to discontinue her pay while on suspension and to pay her an ill health retirement pension.

9.      The complainant alleges that there is a suggestion of unequal pay arising from the decision of the respondent to pay her an ill health retirement pension.

10.   The complainant claims that she is entitled to have her complaint regarding unequal pay heard under the heading of discrimination on the gender and disability grounds.

11.   The complainant claims that she has been penalised in response to a complaint she submitted to the WRC on August 22nd 2023.

12.   The complainant claims that she has been penalised because she is a suspended worker, due to a decision of the respondent, and not due to any decision of hers.

In a submission provided shortly before the hearing, Ms McNamara asked me to consider two preliminary points and to reach a conclusion on these matters before any consideration of the substantive issues.

Ms McNamara referred to the definition of discrimination at s.6(1) of the Employment Equality Act 1998 (“the EE Act.”), which means the less favourable treatment of a person on any of the nine discriminatory grounds of gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community.

1.  Issues Related to Pensions are Excluded from the Remit of the Employment Equality Act 1998

Section 8(1) of the EE Act sets out the context of the prohibition on discrimination:

(1) In relation to -

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Section 8(6) sets out how discrimination is determined in relation to conditions of employment:

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one -

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

Ms McNamara highlighted the reference at subsection (a) above to “remuneration and pension rights.”

Under the Interpretation heading at s.2 of the EE Act, pension payments are excluded from the definition of “remuneration:”

“[R]emuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment.

2.  Time Limits for Submitting Complaints

The second preliminary point is related to the fact that the complainant ceased employment with the respondent on May 20th 2019.  As she submitted these complaints on November 3rd 2023, they have been submitted considerably outside the six-month time limit for submitting complaints which is set out at s.77(5)(a) of the Employment Equality Act and s.28 of the Safety, Health and Welfare at Work Act 2005.

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

Ms McNamara referred to decisions of the Labour Court on complaints submitted by the complainant against the same respondent:

In its determination on EDA 2148, the Court held that “the termination of employment falls within the terms of s.77(6A)(a)(i) of the Acts so that, on 20 May 2019, the last day of employment is a date on which an alleged failure to provide a reasonable accommodation is applicable.”  In the same decision, under the heading of “Deliberation,” the Court noted that,

“The various matters under appeal to the Court all relate to the same set of facts.  These all relate to the letter of termination sent by the Respondent to the Complainant on 20 May 2019, in which the decision to retire her early on the basis of medical evidence was conveyed.”

In LCR 22612, a separate division of the Labour Court noted that the complainant’s employment ended on May 20th 2019 and that her dispute regarding her retirement which was submitted under the industrial Relations Act on January 8th 2022 was statute barred.  The Court held that a retired employee must submit a complaint within six months after the date on which they retire.

These complaints were submitted to the WRC on November 3rd 2023, almost four years to the day from when the complainant submitted her first set of complaints under the Employment Equality Act.  On the day of this hearing, May 22nd 2024, the complainant had been retired for five years. 

Before the proceedings concluded on May 22nd, I indicated to the complainant that it is my view that, as her employment was terminated due to compulsory retirement on May 20th 2019, her complaints are outside the statutory time limits in the relevant legislation.  The complainant disagreed and asked if she could make further submissions after the hearing.  I agreed to this request and, on May 28th, she sent a detailed submission, based around four arguments that, as a retired employee, she continues in the employment of the respondent.  In the first instance, she argues that pension payments may be considered in the same category as wages.  She then argues that, because PAYE and PRSI deductions are made from her pension, she has a continuing relationship with her employer.  Thirdly, she claims that the respondent’s decision to terminate her employment early on the grounds of ill health is contrary to social policy.  Finally, she argues that the respondent was wrong in their conclusion that she was medically unfit for work.

At the core of the complainant’s dispute with her former employer is the fact that her employment was terminated due to ill health.  It is my view that her claims about her pension are ancillary to that fundamental issue, because, it was open to the respondent to dismiss her for reasons of incapacity and to defer her entitlement to her pension.  Regardless of any continuing relationship with the respondent as a person in receipt of an occupational pension, the complainant’s employment was terminated on May 19th 2019. 

I explained to the complainant at the hearing that my role as an adjudicator of a complaint under the legislation is to apply the law.  The Employment Equality Act applies to “an employee or a prospective employee,” (s.8(1)).  It also provides that an employee may bring a complaint within a maximum time limit of 12 months after the last incident of discrimination.   I cannot permit the complainant to re-frame her dismissal or the events that preceded it to appear as if she is suspended and I reject her assertion that the payment of her pension constitutes a continuing act of discrimination.  The complainant’s claim of penalisation under the Safety, Health and Welfare at Work Act, as it is grounded in a complaint submitted to the WRC on August 22nd 2023, is misconceived.   

In conclusion therefore, I find that the complaints set out above under the Employment Equality Act 1998 and the Safety, Health and Welfare at Work Act 2005 have been submitted outside the statutory time limits and I have no jurisdiction to make any further enquiries.

I decide that I have no jurisdiction to adjudicate on these complaints because they were submitted outside the time limit prescribed at s.77(5)(a) of the Employment Equality Act 1998 and s.28 of the Safety, Health and Welfare at Work Act 2005.

Time limits for submitting complaints