CORRECTION ORDER
ISSUED PURSUANT TO SECTION 88 of the Employment Equality Act 1998
This Order corrects the original Decision (ADJ-00044630) issued on 10/05/2024 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044630
Parties:
| Complainant | Respondent |
Parties | Annie Dalton | Waterford Leader Partnership Company Limited By Guarantee |
Representatives | Jade Wright, Sean Ormond Solicitors | Patrick Gordon, Joseph P. Gordon & Co. Solicitors |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00055321-001 | 28/02/2023 |
Date of Adjudication Hearing: 11/03/2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of theEmployment Equality Acts, 1998 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. Both parties were offered, and availed of, the opportunity to cross-examine the evidence.
Background:
The complaint is that the Respondent discriminated against the Complainant on the grounds of gender, age, disability and conditions of employment and that she was subjected to harassment.
Summary of Complainant’s Case:
The Complainant is employed as an Employment Guidance Officer with the Respondent since 2nd January 2007. The Respondent is a company limited by guarantee carrying out the business of a community led local development company. The Complainant was diagnosed with Cancer in 2009, had two car accidents in 2014/2015 and had her sick leave entitlements withdrawn in 2019. As a result of her treatment at work she has been diagnosed as suffering from depression and anxiety related illnesses.
She was happy in her role and was well thought of and handled a large volume of work. She not unreasonably felt that the Respondent shared this opinion, given her work performance, the delegation of work and responsibility to her, her supervision of administrative staff and general running of the office. The Complainant was shocked, upset and disappointed when the CEO of the Respondent approached her with his purported concerns around her attendance levels at work. While the Complainant acknowledges that she had historically been absent from work for a prolonged period of time, the Complainant submits that same arose as a result of a disability and that in more recent years she has had a good attendance record.
The Complainant believes that the concerns raised with her by then CEO Mr JT were concocted and were used in an attempt to harass and intimidate her. She was left very anxious and upset by his inappropriate interactions with her. It is noteworthy that he was not the Complainant’s Manager during the time of her absences due to her disability.
Mr JT subsequently approached the Complainant again in August 2022 with a proposed new contract of employment. The Complainant asserts that she was the only employee approached with changes to her contract. The Complainant’s fundamental terms of employment were amended in that
- (a) her term of employment was changed from an indefinite duration to a fixed term of four years
- (b) Her entitlement to sick leave had been removed;
- (c) Her place of work had been changed
- (d) Her access to administrative support had been removed
- (e) Remuneration was unfair in comparison to male colleagues with less experience (this point was withdrawn at hearing).
The Complainant was not given reasonable time to consider the new terms. She was provided with the new contract on 26th August 2022 and was to have it signed and returned by the 30th August 2022. The Complainant was very ill with Covid at this time. Nevertheless the CEO bombarded her with phone calls during this time which exacerbated her stress.
The Complainant also took issue with the pay scale offered, as given her experience in the role she should have been at the top tier of pay at this stage in her career. She asserts that colleagues with less experience and qualifications than her were being offered more or equal pay by the Respondent on entry level. The Complainant had to repeatedly request information regarding her pay when others were informed straight away of their renumeration. The Complainant was sent contradicting variations of her pay entitlements from Mr JT. Email dated 24/08/2022 and the pay scale for LAES staff were submitted. The email shows that the Complainant was seeking to know what exactly would her salary be and other clarifications she sought including place of work, entitlement to sick leave.
The Complainant’s concerns about her entitlement to sick leave were met with hostility and snide remarks alluding to her having previously been absent with cancer. She was told in one email that “we can’t afford to revert to the 2012-2018 period, either in terms of the level of absence, finance or grief it caused for all concerned including yourself.”
The Complainant gave sworn evidence. She stated that she was employed as an Employment Advisor in 2007. She advises long term unemployed and various people regarding options and potential employment. From 2009, when she was diagnosed with cancer, she had ongoing medical issues. She feels she has been subjected to punitive treatment from the Respondent. From 2014, her absences due to sick leave have been constantly raised. She had a car accident in 2014 and she fell when on holiday in 2016. She felt her Line Manager was brutally cold with her and when carrying out performance appraisals, constantly referred to her absences so much that the Complainant said she lived in fear of being ill. She had a number of other situations which caused her grief such as the death of her sister.
She referred to the dispute she had with the Respondent going back to 2017 when the Respondent withdrew her sick leave entitlements.
She was issued with a new contract in 2022 for a 4 year fixed term. She objected to the contents and felt it was a significantly different one from the one she was on in a negative sense.
She felt she was on a lower salary than she should have been. Also her place of work was not secured. She would be required to travel. The provision for retirement age was changed. The CEO just dismissed any comments or queries or objections she had to the wording of the new contract.
Summary of Respondent’s Case:
The Respondent gave written and oral evidence summarised as follows:
By complaint forms dated the 10th November 2022 and 28th February 2023 the Claimant lodged complaints with the Workplace Relations Commission ('WRC'). The following matters are before the Adjudicating Officer for determination:
The Complainant's complaint pursuant to section 77 of the Employment Equality Act, 1998 that the Respondent, their servants or agents, discriminated against her on the ground of disability.
In their submission, the Claimant’s representatives state that she was happy in her role and was well thought of and handled a large volume of work at the relevant Respondent's office. It was stated that the Claimant not unreasonably felt that the Respondent shared this opinion given her work performance, the delegation of work and responsibility to her, her supervision of administrative staff and general running of the office. The Respondent submits that return-to-work interviews demonstrate that the claimant has not been happy in her work for a number of years. See documentary evidence regarding parking costs, chairs, etc. The documentation also evidences that the claimant has been unhappy for many years, as evidenced by meetings with the claimant’s SIPTU Representatives going back to 2014. The Complainant raised a complaint through SIPTU in 2018 and the subsequent investigation and correspondence were submitted. The claimant’s complaint against her Line Manager and her Solicitor’s letter re same from a firm of Solicitors in Cork was submitted.
The Respondent responded to the points made in the Complainant’s submission in relation to the issues of:
The terms of employment (contract issue)
Sick leave
Place of work
Access to administrative support
Pay and Pay scales
Performance Management Meetings.
The records show that the caseloads were small with a low level of activity. Target was 150 clients per annum and then reduced to 120 clients per annum. Now 100 clients per annum. December 2016 email demonstrates that the Claimant was a reluctant participant in performance management meetings. The claimant asks about increments (which was accepted and actioned) The LES was funded by DSP and there was a pay freeze from 2012 until the LES closed in August 2022. The Board through its management and indeed the Chairman contacted DSP every year to see if this freezing of increments would be lifted. The same pattern as with the previous line manager starts to develop. Please note that the new Line Manager was not given any oral or written report, including the claimants personnel file, prior to or after joining the company.
The claimants sick leave record.
In the previous five years up to 2017 the claimant had racked up 121 days paid leave excluding annual leave. Currently, that total is now 302 days. The Company in 2017 under the claimant’s contract of employment had to curtail her paid sick leave entitlement from 30 days to the company’s annual average sick leave taken of 3 days per annum. From 2017, the Claimant retained 3 paid sick leave days per annum (Company Average), another 3 days per annum paid leave to attend medical appointments, children’s medical appointments and all the other paid entitlements as per the company handbook. This was reviewed annually. During COVID-19, the Claimant worked from home and her 30 days per annum paid leave was re-instated for COVID-19. With the welcome relief of the new multi annual LAES (Local Area Employment Service Contract) in September 2022, which replaced the annual LES (Local Employment Service) Contract, the company were intent on re-instating the 30 days paid sick leave to the claimant as per the contract, but on the basis that the contract would be treated fairly. The CEO had to bring this fact to the attention of the claimant because of persistent patterns in the past. Medical Report in 2014 confirmed that after examination of the claimant and consultation with her doctor that the claimant was fit for work and did not have any other significant medical condition at this time. Recent medical certificates from the Claimants Doctor have issued with nothing on them. As a result, the Company is unable to ascertain the claimant’s medical fitness to work. While the Claimant acknowledges that she had historically been absent from work for a prolonged period of time, the Claimant submits that same arose as a result of a disability and that in more recent years the Claimant has had a good attendance record. The medical Report demonstrates with the support of the Claimant’s Practitioner that she has no medical condition that will impede her work. The Company has no evidence of a certified disability. Self-certification does not meet the employment policy standards of the company. In terms of the attendance record, it did improve for 2 reasons.
1) The claimant’s paid sick leave was reduced to 3 days per annum and
2) During COVID-19, staff worked from home and there was basically a very small caseload to handle on the telephone. 1 Hour per day would have carried out the duties.
The Claimant believes that the concerns raised with her by Mr JT were concocted and were used in an attempt to harass and intimidate her. The Claimant contends that she was left very anxious and upset by Mr JT' s inappropriate interactions with her. It is noteworthy that Mr. JT was not the Claimant's manager during the time of her absences due to her disability. It is submitted that Mr JT’s interactions on an annual basis were minimal, as there has always been a Line Manager, bar September 2022.
The Respondent submits in this case that the concerns raised are not new and unfortunately have continued to be current. There is evidence of a pattern of significant absences, unwillingness to work within the policies of the company, and a general distain regarding reasonable requests and decisions. The Claimant’s own Doctor has confirmed to the Doctor in the EHA that the claimant is fit to work, and no form of medical certification has been received from the claimant since that time to confirm the contrary.
Pay and Pay Scales
The Respondent’s response to the Complainant’s assertion that given her experience in the role she should have been at the top tier of the scale and that colleagues with less experience and qualifications were being offered more or equal pay on entry level and that she had to repeatedly ask for information regarding her pay is as follows:
The Complainant did take issue with the pay scale on offer. However, circumstances were such that the funder annually refused to provide an additional budget for salary increases. When the Company obtained a new LAES contract the Board immediately put in place a pay scale related to the Pobal scales for LAES staff. Under this, the Complainant was offered a 5% pay increase and was told at the same time as everyone else. If she accepted the increase, she would be the second highest paid Case Worker. The higher paid Case Worker has longer service.
The former CEO Mr JT gave sworn evidence.
In relation to the Complainant’s assertion that she was subjected to less favourable treatment on the basis of her age, disability and gender, he stated that on the contrary the record shows that at a certain point, she received enhanced sick leave entitlement, when the Board approved an increase due to the circumstances. In relation to her claim that she was subjected to unfair criticism in comparison to male colleagues, as there were 4 Case Workers, all female it is not a valid claim. (Representative of the Complainant deleted references to male workers in paragraph 24 of their submission as they referred to pay and unfair criticism).
Mr JT refuted the claims made by the Complainant that the reason her sick leave entitlements were withdrawn and that she was treated less favourably was based on her disability. He stated that any time her sick leave was discussed with her was in relation to the fact that she had many more days than colleagues and a pattern of Mondays and Fridays. He denied that he ever said to the Complainant that “other people get sick and come to work”. He further refuted that he subjected her to undue pressure in agreeing to a new contract. He explained the background around the fixed term nature of the contract as it was dependent on funding. The four year period gave stability and he argued was not less favourable. The requirement to retire at age 68 was more favourable. He had made attempts to engage with her solicitor but the solicitor would not engage with him in relation to the problems the Complainant had with her contract.
Findings and Conclusions:
The complaint that the Respondent has discriminated against the Complainant was received on 28th February 2023. The cognisable period for consideration as to whether discrimination occurred is from 29th August 2022.
Section 77 (5) (a) of the Acts provides:
(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination 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.
Section 77 (6) (a) provides:
For the purposes of this section –
- (a) Discrimination or victimisation occurs-
- (i) If the act constituting it extends over a period, at the end of the period..
The Labour Court in Cisco Systems Internetworking (Ireland) Limited and Olumide Smith DEC-E2016-026 stated that if an occurrence or occurrences were found to be acts of discrimination or victimisation within the time limit prescribed, the court would hear evidence in relation to all of the occurrences relied upon. If, however, these occurrences were found not to have involved discrimination or victimisation, a complaint relating to the earlier occurrences could not be entertained having regard to s.77(5) of the Act as the most recent occurrences would have been outside the time limit.
I have therefore investigated whether the Respondent discriminated against the Complainant in the time period from 29th August 2022 to 28th February 2023. On 22nd September 2022, the Complainant’s solicitor wrote to the Respondent outlining his client’s strong objections to a proposed new contract, point of the salary scale, use of her disability against her, and removal of her sick leave entitlements.
The Complainant has complaints in relation to her employment which go back a number of years. She contends that she has been treated less favourably than others on the grounds of disability, age and conditions of employment and that she has been harassed by the former CEO. In order to consider the complaints which date back a number of years, I first examine the allegations of discrimination which date from 29th August 2022.
The Law
Discrimination is defined as:
6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
Section 6(2) of the Actsprovides
discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds set out in s 6(2) including at
(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”) and
(g) “that one is a person with a disability and the other either is not or is a person with a different disability” (i.e., “the disability ground”).
Definition of Disability
Section 2 of the Acts defines a disability as:
“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”
The Respondent initially disputed that the Complainant had a disability and later in the hearing agreed that she did suffer from a disability, having had cancer and a number of other illnesses and car accidents throughout the years 2009 - 2020. The Respondent noted that current medical certificates do not include any description of reasons for absence except “medical illness”.
I note that the Complainant suffered a number of illnesses and accidents over a long period. I note that she was medically declared as ‘cancer free’ in 2014. I note the absence of medical description in the certs recently provided. However, the matter of the Complainant’s disability was clarified and eventually accepted by the Respondent at the hearing, and I am satisfied that the Complainant meets the definition of disability as provided for in the Act.
Prohibition on Discrimination
The grounds cited by the Complainant are gender, age and disability. The definitions are contained in Section 6 (2) of the Act as above.
In evidence, the Respondent stated that the other Case Workers are female.
The complaint under gender ground was then withdrawn at hearing. The Complainant’s representative requested that the reference to “male” be deleted in point 10 of their submission.
In relation to her allegation that she has been discriminated against on the ground of disability, the Complainant alleged that her entitlement to sick leave was removed and that she was subjected to hostility and snide remarks in relation to her sick leave absences. The Complainant also alleged discrimination on age grounds.
Prima Facie:
Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:
“(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.”
In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’
In Melbury Developments v Arturs Valpeters, EDA0917, the Labour Court stated:
” Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”
Changes to contract
I understand the Complainant’s point about the difference between a contract of indefinite duration and a fixed term contract. She was informed in 2008 that her original fixed term contract is now a contract of indefinite duration and then in 2022 she was offered a fixed term 4 year contract. No amount of explanation from the Respondent could reassure her. The 2022 contract states “This contract is conditional on the award of funding from the Department of Social Protection, for the LAES, which has been made available for 4 years from 16.08.2022 to 15.08.2026. The letter dated 10th October 2008 confirming her contract of indefinite duration states: “In effect this means that if Waterford LEADER Partnership Ltd has adequate contracts to provide the resources to pay your salary, you work in line with your original contract, and your work is satisfactory, your current contract has an indefinite duration up until your 65th birthday”. Essentially all contracts received by the Complainant were dependent on funding. However, the main issue here is whether the Complainant received a less favourable contract than others. In this case, I find that the Complainant was not the only employee approached with changes to her contract. The Complainant has not established a prima facie case in this matter.
Age
In relation to her allegation of discrimination on the ground of age, the Complainant alleged that the lack of incremental progression, along with the issue of a fixed-term contract to her is related to her age. The issue of incremental progression was addressed by the Respondent in that all employees were subjected to the same constraints on pay over a number of years when increases were denied by the funder.
The Complainant objected to the terms in a proposed contract being issued to her in August 2022, including the fact that it was a fixed term contract and it contained the retirement age as 68. I find that as the Complainant was issued with the same or similar contract as other employees, she has not established a prima facie case on the age ground.
Disability/Sick leave
The Complainant had many issues with the Respondent’s treatment of her in relation to her sick leave absences. Her contention is that the Respondent treated her unfavourably. She cited that whenever performance was discussed, it was always in the context of sick leave. It got to the stage where she was afraid of falling ill. The Respondent, for its part had concerns about her record and produced the records for comparison with other employees’ sick leave. In evidence the Respondent stated that the Complainant had six times the average sick leave of others. I note that in an email dated 1st September 2022 the Respondent confirmed the terms and conditions regarding sick pay as laid out in the Complainant’s Contract as being full pay at the discretion of the company up to a maximum of 30 days in any 12 months, provided each period of 3 days or more is covered by a doctors certificate, and that uncertified sick leave does not exceed 5 days. In a follow up email the discretionary nature of the leave is reiterated. The Complainant’s contract contains the same clause in relation to sickness pay and conditions as the other employees. The Complainant has not established a prima facie case on the disability ground.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the Complainant has not established a prima facie case and the Respondent has not discriminated against the Complainant.
Dated: 10-05-2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Discrimination on grounds of gender, age and disability. Prima facie not established. |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044630
Parties:
| Complainant | Respondent |
Parties | Annie Dalton | Waterford Leader Partnership Company Limited By Guarantee |
Representatives | Jade Wright, Sean Ormond Solicitors | Paddy Horgan, Joseph P. Gordon & Co. Solicitors |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00055321-001 | 28/02/2023 |
Date of Adjudication Hearing: 11/03/2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of theEmployment Equality Acts, 1998 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. Both parties were offered, and availed of, the opportunity to cross-examine the evidence.
Background:
The complaint is that the Respondent discriminated against the Complainant on the grounds of gender, age, disability and conditions of employment and that she was subjected to harassment.
Summary of Complainant’s Case:
The Complainant is employed as an Employment Guidance Officer with the Respondent since 2nd January 2007. The Respondent is a company limited by guarantee carrying out the business of a community led local development company. The Complainant was diagnosed with Cancer in 2009, had two car accidents in 2014/2015 and had her sick leave entitlements withdrawn in 2019. As a result of her treatment at work she has been diagnosed as suffering from depression and anxiety related illnesses.
She was happy in her role and was well thought of and handled a large volume of work. She not unreasonably felt that the Respondent shared this opinion, given her work performance, the delegation of work and responsibility to her, her supervision of administrative staff and general running of the office. The Complainant was shocked, upset and disappointed when the CEO of the Respondent approached her with his purported concerns around her attendance levels at work. While the Complainant acknowledges that she had historically been absent from work for a prolonged period of time, the Complainant submits that same arose as a result of a disability and that in more recent years she has had a good attendance record.
The Complainant believes that the concerns raised with her by then CEO Mr JT were concocted and were used in an attempt to harass and intimidate her. She was left very anxious and upset by his inappropriate interactions with her. It is noteworthy that he was not the Complainant’s Manager during the time of her absences due to her disability.
Mr JT subsequently approached the Complainant again in August 2022 with a proposed new contract of employment. The Complainant asserts that she was the only employee approached with changes to her contract. The Complainant’s fundamental terms of employment were amended in that
- (a) her term of employment was changed from an indefinite duration to a fixed term of four years
- (b) Her entitlement to sick leave had been removed;
- (c) Her place of work had been changed
- (d) Her access to administrative support had been removed
- (e) Remuneration was unfair in comparison to male colleagues with less experience (this point was withdrawn at hearing).
The Complainant was not given reasonable time to consider the new terms. She was provided with the new contract on 26th August 2022 and was to have it signed and returned by the 30th August 2022. The Complainant was very ill with Covid at this time. Nevertheless the CEO bombarded her with phone calls during this time which exacerbated her stress.
The Complainant also took issue with the pay scale offered, as given her experience in the role she should have been at the top tier of pay at this stage in her career. She asserts that colleagues with less experience and qualifications than her were being offered more or equal pay by the Respondent on entry level. The Complainant had to repeatedly request information regarding her pay when others were informed straight away of their renumeration. The Complainant was sent contradicting variations of her pay entitlements from Mr JT. Email dated 24/08/2022 and the pay scale for LAES staff were submitted. The email shows that the Complainant was seeking to know what exactly would her salary be and other clarifications she sought including place of work, entitlement to sick leave.
The Complainant’s concerns about her entitlement to sick leave were met with hostility and snide remarks alluding to her having previously been absent with cancer. She was told in one email that “we can’t afford to revert to the 2012-2018 period, either in terms of the level of absence, finance or grief it caused for all concerned including yourself.”
The Complainant gave sworn evidence. She stated that she was employed as an Employment Advisor in 2007. She advises long term unemployed and various people regarding options and potential employment. From 2009, when she was diagnosed with cancer, she had ongoing medical issues. She feels she has been subjected to punitive treatment from the Respondent. From 2014, her absences due to sick leave have been constantly raised. She had a car accident in 2014 and she fell when on holiday in 2016. She felt her Line Manager was brutally cold with her and when carrying out performance appraisals, constantly referred to her absences so much that the Complainant said she lived in fear of being ill. She had a number of other situations which caused her grief such as the death of her sister.
She referred to the dispute she had with the Respondent going back to 2017 when the Respondent withdrew her sick leave entitlements.
She was issued with a new contract in 2022 for a 4 year fixed term. She objected to the contents and felt it was a significantly different one from the one she was on in a negative sense.
She felt she was on a lower salary than she should have been. Also her place of work was not secured. She would be required to travel. The provision for retirement age was changed. The CEO just dismissed any comments or queries or objections she had to the wording of the new contract.
Summary of Respondent’s Case:
The Respondent gave written and oral evidence summarised as follows:
By complaint forms dated the 10th November 2022 and 28th February 2023 the Claimant lodged complaints with the Workplace Relations Commission ('WRC'). The following matters are before the Adjudicating Officer for determination:
The Complainant's complaint pursuant to section 77 of the Employment Equality Act, 1998 that the Respondent, their servants or agents, discriminated against her on the ground of disability.
In their submission, the Claimant’s representatives state that she was happy in her role and was well thought of and handled a large volume of work at the relevant Respondent's office. It was stated that the Claimant not unreasonably felt that the Respondent shared this opinion given her work performance, the delegation of work and responsibility to her, her supervision of administrative staff and general running of the office. The Respondent submits that return-to-work interviews demonstrate that the claimant has not been happy in her work for a number of years. See documentary evidence regarding parking costs, chairs, etc. The documentation also evidences that the claimant has been unhappy for many years, as evidenced by meetings with the claimant’s SIPTU Representatives going back to 2014. The Complainant raised a complaint through SIPTU in 2018 and the subsequent investigation and correspondence were submitted. The claimant’s complaint against her Line Manager and her Solicitor’s letter re same from a firm of Solicitors in Cork was submitted.
The Respondent responded to the points made in the Complainant’s submission in relation to the issues of:
The terms of employment (contract issue)
Sick leave
Place of work
Access to administrative support
Pay and Pay scales
Performance Management Meetings.
The records show that the caseloads were small with a low level of activity. Target was 150 clients per annum and then reduced to 120 clients per annum. Now 100 clients per annum. December 2016 email demonstrates that the Claimant was a reluctant participant in performance management meetings. The claimant asks about increments (which was accepted and actioned) The LES was funded by DSP and there was a pay freeze from 2012 until the LES closed in August 2022. The Board through its management and indeed the Chairman contacted DSP every year to see if this freezing of increments would be lifted. The same pattern as with the previous line manager starts to develop. Please note that the new Line Manager was not given any oral or written report, including the claimants personnel file, prior to or after joining the company.
The claimants sick leave record.
In the previous five years up to 2017 the claimant had racked up 121 days paid leave excluding annual leave. Currently, that total is now 302 days. The Company in 2017 under the claimant’s contract of employment had to curtail her paid sick leave entitlement from 30 days to the company’s annual average sick leave taken of 3 days per annum. From 2017, the Claimant retained 3 paid sick leave days per annum (Company Average), another 3 days per annum paid leave to attend medical appointments, children’s medical appointments and all the other paid entitlements as per the company handbook. This was reviewed annually. During COVID-19, the Claimant worked from home and her 30 days per annum paid leave was re-instated for COVID-19. With the welcome relief of the new multi annual LAES (Local Area Employment Service Contract) in September 2022, which replaced the annual LES (Local Employment Service) Contract, the company were intent on re-instating the 30 days paid sick leave to the claimant as per the contract, but on the basis that the contract would be treated fairly. The CEO had to bring this fact to the attention of the claimant because of persistent patterns in the past. Medical Report in 2014 confirmed that after examination of the claimant and consultation with her doctor that the claimant was fit for work and did not have any other significant medical condition at this time. Recent medical certificates from the Claimants Doctor have issued with nothing on them. As a result, the Company is unable to ascertain the claimant’s medical fitness to work. While the Claimant acknowledges that she had historically been absent from work for a prolonged period of time, the Claimant submits that same arose as a result of a disability and that in more recent years the Claimant has had a good attendance record. The medical Report demonstrates with the support of the Claimant’s Practitioner that she has no medical condition that will impede her work. The Company has no evidence of a certified disability. Self-certification does not meet the employment policy standards of the company. In terms of the attendance record, it did improve for 2 reasons.
1) The claimant’s paid sick leave was reduced to 3 days per annum and
2) During COVID-19, staff worked from home and there was basically a very small caseload to handle on the telephone. 1 Hour per day would have carried out the duties.
The Claimant believes that the concerns raised with her by Mr JT were concocted and were used in an attempt to harass and intimidate her. The Claimant contends that she was left very anxious and upset by Mr JT' s inappropriate interactions with her. It is noteworthy that Mr. JT was not the Claimant's manager during the time of her absences due to her disability. It is submitted that Mr JT’s interactions on an annual basis were minimal, as there has always been a Line Manager, bar September 2022.
The Respondent submits in this case that the concerns raised are not new and unfortunately have continued to be current. There is evidence of a pattern of significant absences, unwillingness to work within the policies of the company, and a general distain regarding reasonable requests and decisions. The Claimant’s own Doctor has confirmed to the Doctor in the EHA that the claimant is fit to work, and no form of medical certification has been received from the claimant since that time to confirm the contrary.
Pay and Pay Scales
The Respondent’s response to the Complainant’s assertion that given her experience in the role she should have been at the top tier of the scale and that colleagues with less experience and qualifications were being offered more or equal pay on entry level and that she had to repeatedly ask for information regarding her pay is as follows:
The Complainant did take issue with the pay scale on offer. However, circumstances were such that the funder annually refused to provide an additional budget for salary increases. When the Company obtained a new LAES contract the Board immediately put in place a pay scale related to the Pobal scales for LAES staff. Under this, the Complainant was offered a 5% pay increase and was told at the same time as everyone else. If she accepted the increase, she would be the second highest paid Case Worker. The higher paid Case Worker has longer service.
The former CEO Mr JT gave sworn evidence.
In relation to the Complainant’s assertion that she was subjected to less favourable treatment on the basis of her age, disability and gender, he stated that on the contrary the record shows that at a certain point, she received enhanced sick leave entitlement, when the Board approved an increase due to the circumstances. In relation to her claim that she was subjected to unfair criticism in comparison to male colleagues, as there were 4 Case Workers, all female it is not a valid claim. (Representative of the Complainant deleted references to male workers in paragraph 24 of their submission as they referred to pay and unfair criticism).
Mr JT refuted the claims made by the Complainant that the reason her sick leave entitlements were withdrawn and that she was treated less favourably was based on her disability. He stated that any time her sick leave was discussed with her was in relation to the fact that she had many more days than colleagues and a pattern of Mondays and Fridays. He denied that he ever said to the Complainant that “other people get sick and come to work”. He further refuted that he subjected her to undue pressure in agreeing to a new contract. He explained the background around the fixed term nature of the contract as it was dependent on funding. The four year period gave stability and he argued was not less favourable. The requirement to retire at age 68 was more favourable. He had made attempts to engage with her solicitor but the solicitor would not engage with him in relation to the problems the Complainant had with her contract.
Findings and Conclusions:
The complaint that the Respondent has discriminated against the Complainant was received on 28th February 2023. The cognisable period for consideration as to whether discrimination occurred is from 29th August 2022.
Section 77 (5) (a) of the Acts provides:
(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination 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.
Section 77 (6) (a) provides:
For the purposes of this section –
- (a) Discrimination or victimisation occurs-
- (i) If the act constituting it extends over a period, at the end of the period..
The Labour Court in Cisco Systems Internetworking (Ireland) Limited and Olumide Smith DEC-E2016-026 stated that if an occurrence or occurrences were found to be acts of discrimination or victimisation within the time limit prescribed, the court would hear evidence in relation to all of the occurrences relied upon. If, however, these occurrences were found not to have involved discrimination or victimisation, a complaint relating to the earlier occurrences could not be entertained having regard to s.77(5) of the Act as the most recent occurrences would have been outside the time limit.
I have therefore investigated whether the Respondent discriminated against the Complainant in the time period from 29th August 2022 to 28th February 2023. On 22nd September 2022, the Complainant’s solicitor wrote to the Respondent outlining his client’s strong objections to a proposed new contract, point of the salary scale, use of her disability against her, and removal of her sick leave entitlements.
The Complainant has complaints in relation to her employment which go back a number of years. She contends that she has been treated less favourably than others on the grounds of disability, age and conditions of employment and that she has been harassed by the former CEO. In order to consider the complaints which date back a number of years, I first examine the allegations of discrimination which date from 29th August 2022.
The Law
Discrimination is defined as:
6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
Section 6(2) of the Actsprovides
discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds set out in s 6(2) including at
(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”) and
(g) “that one is a person with a disability and the other either is not or is a person with a different disability” (i.e., “the disability ground”).
Definition of Disability
Section 2 of the Acts defines a disability as:
“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”
The Respondent initially disputed that the Complainant had a disability and later in the hearing agreed that she did suffer from a disability, having had cancer and a number of other illnesses and car accidents throughout the years 2009 - 2020. The Respondent noted that current medical certificates do not include any description of reasons for absence except “medical illness”.
I note that the Complainant suffered a number of illnesses and accidents over a long period. I note that she was medically declared as ‘cancer free’ in 2014. I note the absence of medical description in the certs recently provided. However, the matter of the Complainant’s disability was clarified and eventually accepted by the Respondent at the hearing, and I am satisfied that the Complainant meets the definition of disability as provided for in the Act.
Prohibition on Discrimination
The grounds cited by the Complainant are gender, age and disability. The definitions are contained in Section 6 (2) of the Act as above.
In evidence, the Respondent stated that the other Case Workers are female.
The complaint under gender ground was then withdrawn at hearing. The Complainant’s representative requested that the reference to “male” be deleted in point 10 of their submission.
In relation to her allegation that she has been discriminated against on the ground of disability, the Complainant alleged that her entitlement to sick leave was removed and that she was subjected to hostility and snide remarks in relation to her sick leave absences. The Complainant also alleged discrimination on age grounds.
Prima Facie:
Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:
“(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.”
In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’
In Melbury Developments v Arturs Valpeters, EDA0917, the Labour Court stated:
” Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”
Changes to contract
I understand the Complainant’s point about the difference between a contract of indefinite duration and a fixed term contract. She was informed in 2008 that her original fixed term contract is now a contract of indefinite duration and then in 2022 she was offered a fixed term 4 year contract. No amount of explanation from the Respondent could reassure her. The 2022 contract states “This contract is conditional on the award of funding from the Department of Social Protection, for the LAES, which has been made available for 4 years from 16.08.2022 to 15.08.2026. The letter dated 10th October 2008 confirming her contract of indefinite duration states: “In effect this means that if Waterford LEADER Partnership Ltd has adequate contracts to provide the resources to pay your salary, you work in line with your original contract, and your work is satisfactory, your current contract has an indefinite duration up until your 65th birthday”. Essentially all contracts received by the Complainant were dependent on funding. However, the main issue here is whether the Complainant received a less favourable contract than others. In this case, I find that the Complainant was not the only employee approached with changes to her contract. The Complainant has not established a prima facie case in this matter.
Age
In relation to her allegation of discrimination on the ground of age, the Complainant alleged that the lack of incremental progression, along with the issue of a fixed-term contract to her is related to her age. The issue of incremental progression was addressed by the Respondent in that all employees were subjected to the same constraints on pay over a number of years when increases were denied by the funder.
The Complainant objected to the terms in a proposed contract being issued to her in August 2022, including the fact that it was a fixed term contract and it contained the retirement age as 68. I find that as the Complainant was issued with the same or similar contract as other employees, she has not established a prima facie case on the age ground.
Disability/Sick leave
The Complainant had many issues with the Respondent’s treatment of her in relation to her sick leave absences. Her contention is that the Respondent treated her unfavourably. She cited that whenever performance was discussed, it was always in the context of sick leave. It got to the stage where she was afraid of falling ill. The Respondent, for its part had concerns about her record and produced the records for comparison with other employees’ sick leave. In evidence the Respondent stated that the Complainant had six times the average sick leave of others. I note that in an email dated 1st September 2022 the Respondent confirmed the terms and conditions regarding sick pay as laid out in the Complainant’s Contract as being full pay at the discretion of the company up to a maximum of 30 days in any 12 months, provided each period of 3 days or more is covered by a doctors certificate, and that uncertified sick leave does not exceed 5 days. In a follow up email the discretionary nature of the leave is reiterated. The Complainant’s contract contains the same clause in relation to sickness pay and conditions as the other employees. The Complainant has not established a prima facie case on the disability ground.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the Complainant has not established a prima facie case and the Respondent has not discriminated against the Complainant.
Dated: 10-05-2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Discrimination on grounds of gender, age and disability. Prima facie not established. |