ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00037288

	Complainant	Respondent
Anonymised Parties	Childcare Supervisor	Oberstown Children Detention Campus

Representatives

Aidan McGrath ARAG Legal Protection Limited/ Barry O’Mahony BL

Mark Comerford IBEC

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00048612-001	14/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00048612-002	14/02/2022

Date of Adjudication Hearing: 14/10/2024

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

The parties agreed a related case Adj-00044286 and CA-00054989-001/002 were linked and should be determined as one file.

The Complainant has been anonymised arising from the medical facts opened at the hearing.

Background:

The Complainant alleges the following:

CA-00048612-001

My employer refused to reassign me duties during a period of reduction in work when due to my illness I was directed to work remotely during Covid 19. This resulted in a substantial loss in pay and premium payments to me. I was certified fit to return to full duties, but my employer has failed, neglected or refused to return me to full duties resulting in continuing loss of pay and premium payments.

The full details of the premium and shift payments which I have not received will be outlined in detail in due course.

CA-00048612-002

I was discriminated against on the basis of disability. The circumstances of the discrimination include but are not limited to the following:

My employer insisted that I not attend the workplace during the period of the Covid 19 pandemic due to my disability. I requested that I be allowed to work from home during this period. While I was permitted to carry on some duties at home, my employer failed, refused and or neglected to reassign duties to me which would allow me to actively participate in the workplace during this period of time. I was not permitted to return to the workplace and I lost out on shift allowances, and shift premiums and other premiums which others without disabilities did not lose out on. This has resulted in discriminatory treatment, as others without such condition were permitted to remote working options. This has led to a loss of pay and premium payments.

I was medically certified as fit to return to duty but my employer has failed, neglected or refused to allow my return. Therefore, the discriminatory treatment is continuing again resulting in continuing loss of income and premium payments.

The Claimant will provide further and more detailed particulars of her claim in her submission and at the hearing of the Complaint.

ADJ-00044286

CA-00054989-001

The full details of the premium and shift payments which I have not received will be outlined in detail in due course.

CA-00054989-002

I was discriminated against on the basis of disability. The circumstances of the discrimination include but are not limited to the following:

My employer insisted that I not attend the workplace during the period of the Covid 19 pandemic due to my disability. I requested that I be allowed to work from home during this period. While I was permitted to carry on some duties at home, my employer failed, refused and or neglected to reassign duties to me which would allow me to actively participate in the workplace during this period of time. I was not permitted to return to the workplace, and I lost out on shift allowances, and shift premiums and other premiums which others without disabilities did not lose out on. This has resulted in discriminatory treatment, as others without such condition were permitted to remote working options. This has led to a loss of pay and premium payments.

I was medically certified as fit to return to duty, but my employer has failed, neglected or refused to allow my return. Therefore, the discriminatory treatment is continuing again resulting in continuing loss of income and premium payments. This continuing discrimination ended on the 30th of November 2022 where the complainant was returned to full duty on site.

The Claimant will provide further and more detailed particulars of her claim in her submission and at the hearing of the Complaint

The Complaints overlap and by agreement are amalgamated.

Summary of Complainant’s Case:

The Complainant alleges that her employer refused to reassign her to duties during a period of reduction in work when due to her illness she was directed to work remotely during Covid 19. This resulted in a substantial loss in pay and premium payments to her. She was certified fit to return to full duties, but her employer failed, neglected or refused to return her to full duties resulting in continuing loss of pay and premium payments.

The Complainant also alleges that she was discriminated against based on disability.

Her employer insisted that she could not attend the workplace during the period of the Covid 19 pandemic due to her disability. She requested to be allowed to work from home during this period. While permitted to carry on some duties at home, her employer failed, refused and or neglected to reassign duties to her which would allow her to actively participate in the workplace during this period. She was not permitted to return to the workplace, and she lost out on shift allowances, and shift premiums and other premiums which others without disabilities did not lose out on. This has resulted in discriminatory treatment, as others without such condition were permitted to remote working options. This has led to a loss of pay and premium payments.

She was medically certified as fit to return to duty at a point, but her employer failed, neglected or refused to allow her to return. Therefore, the discriminatory treatment is continuing again resulting in continuing loss of income and premium payments. This continuing discrimination ended on the 30th of November 2022 when the complainant was returned to full duty on site.

Summary of Respondent’s Case:

The Respondent refutes the claim under the Payment of Wages Act in its entirety as no unlawful deduction of wages has occurred in line with the renumeration stated in the Complainants contract or the Respondent’s policies. At no point has the Complainant received an income below her entitlement.

The important element to establish is what were the wages “properly payable” to the employee on “that occasion”. The Respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment. No deduction as defined in Section 5 of the Act has been made as no shift that attracted the premium payment had been completed by the Complainant and therefore, they were not contractually or legislatively entitled to receive remuneration for same. Accordingly, no jurisdiction exists under the Payment of Wages Act 1991 for this claim to be heard.

The Complainant alleges she was discriminated against because of her disability. The Respondent refutes this allegation. The Complainant was treated in the same manner as any of her colleagues and any other Civil or Public Servant, in accordance with DPER issued guidance for employees who were deemed high risk and required to cocoon in adherence to public health advice. RSCW’s work in a highly secure environment looking after the care needs of young people in detention. The RSCW role was not compatible with home working, nor were there any legal obligations on employers to provide remote working for any employees. For the avoidance of doubt, it is not envisaged by the Respondent that the RSCW role could ever be discharged remotely. Article 2(5) of the Employment Framework Directive 2000/78/EC (this Directive covers 5 categories of discrimination including disability) provides that “The Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offence, for protection of health and for the protection of the rights and freedoms of others.” The public health advice implemented during the pandemic, was done so with the advice and input by experts in the field of dealing with infectious diseases internationally. It was not selected by the employer or the employer’s Occupational Health provider. However, they were legislatively and morally obliged to comply.

Findings and Conclusions:

I have concluded that the measures taken were solely arising from the protection of health of the worker in the context of a wider framework of Public Health Guidance and Regulations in response to the COVID Pandemic. Therefore, the cocoon measure was objectively justified and cannot ground a claim for discrimination.

Section 85 (A) of the Act states:

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 him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void

The claims presented can only be viewed in the context of the wider Public Health measures in response to the COVID Pandemic. The Complainant is pursuing these claims as if the factual matrix is irrelevant and as a technical exercise even if that exercise would lead to an irrational outcome.

The Complainant alleges that she was discriminated on the ground of disability. That her employer failed to provide reasonable accommodation to her so that she could fully participate in the workforce. Arising from that failure she also suffered financial loss as she was removed from a shift roster and restricted to a day shift pattern.

The facts show that the Complainant had an underlying health condition that meant initially at her request she was not available to work normally at the beginning of the COVID pandemic.

I note that Article 2(5) of the Employment Framework Directive 2000/78/EC that includes disability provides that:

That the Directive shall be without prejudice laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.

The Complainant was required to cocoon for her own welfare based on independent medical advice. The facts show that arose in response to the COVID pandemic and Public Health guidance and supports. That period of cocooning was also extended arising from other health issues that required surgery. It is important for a decision maker to have regard to the entire factual matrix of this case. The claims lack consideration of how the Complainant was looked after by her employer during COVID arising from her disability that placed her at high risk. Throughout the process independent risk assessments were conducted by Occupational Health and her management concerning the possibility of returning to work. Her work as Childcare Supervisor could not be fulfilled at home. The Complainant states that other work could have been given to her; however, in the storm of a pandemic that perspective is limited when the service was stretched to maintain a high level of care and support for the children under their care. The Directive clearly recognises that public health necessitates at times restrictive measures and such measures cannot then be relied upon to ground a claim for discrimination, when they were taken to protect the Complainant for Public Health reasons.

There were many other employees who were laid off arising from the crisis and received considerably less financial support from the State. The claims brought under the Payment of Wages Act have no merit as the Complainant never worked any of the shifts that she now claims that she was entitled to. There is no contractual obligation to pay for such shifts when the reality is so patently clear around the capacity of the worker to fulfil a normal shift roster without placing the service and herself at risk based on Public Health Guidelines. It is important to look at how this employee was treated overall, and, in that context, she was treated fairly and with compassion.

The following chronology is relevant to matters before me:

Timeline of Events

1. On 26 March 2020, the Complainant submitted a medical certificate to the Respondent which confirmed the Complainant had a ‘’chronic disease (severe asthma) which would put her at increased risk if infected with COVID-19’’. At that time, the Complainant was categorised as a worker providing an essential service that could not be done from home.

2. On 7 April 2020, the Complainant raised concerns with the then Director regarding her medical condition and stated that she should be cocooning.

3. On 8 April 2020, Ms. Murphy contacted the Complainant and left her a voicemail regarding new guidance that had be released by the Department of Public Expenditure and Reform (DPER).

4. This voicemail was followed up with an email sharing an FAQ document is relation to COVID 19 advising her that her colleague Ms Keenan would be in touch with her to arrange an Occupational Health Appointment.

5. On 9 April 2020, an Occupational Health appointment was scheduled via Skype and Dr. Gleeson advised that the Complainant was unfit to work from 10 April 2020 until further notice, highlighting that the Complainant should adhere to HSPC advice on cocooning, she was fit to work from home if that was an option and that there was no follow up required until such time ‘’when the government advises people in the extremely vulnerable group to stop cocooning’’.

6. On 16 April 2020, the Complainant emailed the Respondent requesting clarity on whether she was being paid and if so, how much. She was informed that she would receive basic pay until such time that the HSE and DPER advice was updated. At that time, the Complainant described that clarification as a ‘’huge relief at an already very worrying time’’.

7. In September the Complainant was requested to complete an online Occupational Medical risk assessment to determine her then level of risk based on her medical condition.

8. On 21 September 2020, Medmark furnished the Respondent with a letter advising that ‘’according to the current HSE guidelines Ms redacted fell into the Very High-Risk group (extremely vulnerable). The current HSE guidelines in respect of your employee state that she can work from home but should not be in the workplace. She is advised to cocoon as much as practicable and to stay at home and avoid physical contact as much as possible with other people. It is estimated that the risk of being in the workplace for the employee exceeds the risk of working from home.

9. On 30 March 2021, the Complainant contacted the Respondent to inform them that she had received her first dose of the AstraZeneca Vaccine and would be receiving the second dose in June.

10. On 8 April 2021, Ms. Rafferty, Chief People Officer, wrote to the Complainant to notify her of an Occupational Health review and requesting her to record her Leave for 2021. It was also outlined that ‘’As per DPER (Department of Public Expenditure and Reform) guidelines, it is an obligation of the employer to ensure that employees take annual leave as per the leave policy.

11. On 12 April 2021, the Complainant queried her annual leave balance and requested a breakdown on her leave balances.

12. On 23 April 2021, Ms. Murphy furnished the Complainant with a spreadsheet outlining her leave balances.

13. On 07 May 2021, Medmark contacted Ms. Keenan following the completion of the online risk assessment by the Respondent, advising that ‘’according to the current HSE guidelines this employee falls into the Very High-Risk group (extremely vulnerable).

14. On 21 May 2021, the Complainant contacted the Respondent outlining her dissatisfaction of not being able to return to work and dissatisfaction of not being awarded premium and unsociable hours. For clarity, the Complainant had not worked since 09 April 2020.

15. On 11 June 2021, Ms. Murphy and Ms. Sheehy called the Complainant to check in. It was agreed during this call that Ms. Sheehy would contact the Complainant fortnightly to maintain contact for the duration of her absence. The Complainant also informed the Respondent that she would be receiving her second vaccine on 22 June 2021, meaning based on the public health advice at the time, she would be fully vaccinated.

16. On 8 July 2021, Medmark contacted the Respondent following the Complainants completion of the risk assessment, advising that the Complainant remains in the Very High-Risk category despite completing covid-19 vaccination due to her underlying conditions and her current medication regimen and that this advice was now subject to the outcome of an individual risk assessment conducted by management.

17. On 28 July 2021, a risk assessment was carried out by Oberstown, as required.

18. On 10 August 2021, Ms. Murphy contacted the Complainant to advise her that based on the assessment and the overall risk, the Respondent had been advised that advised that Complainant could not return to work at this time.

19. On 11 August 2021, Medmark confirmed that ‘’there are many job types which do not lend themselves to home working’’ and disclosed that it was ‘’quite common’’ in cases that they were reviewing.

20. On 14 January 2022, the Respondent contacted the Complainant to advise her that they were still seeking clarity from the Department regarding cocooning employees returning to the workplace, following a Government announcement and requested that she complete an occupational health risk assessment form in the interim.

21. On 27 January 2022, the Respondent received a report from Medmark confirming that the Complainant remained ‘’High Risk’’ and advised that ‘’ this advice is subject to the outcome of an individual risk assessment conducted by management for your employee’’ and advised that employer workplace risk assessments for employees should be completed in line with Covid 19 incidence rates.

22. On 3 February 2022, the Complainant requested her shift pattern from the Respondent and acknowledged that they were ‘’awaiting direction from the Department around those cocooning’’.

23. On 4 February 2022, the Respondent advised that they would be in touch further when they had further clarification from the Department and the Complainant responded again requesting a Roster.

24. On 14 February 2022, the Complainant lodged her complaint (ADJ- 00037288) to the WRC. No formal grievance was raised in line with Oberstown’s grievance policy.

25. On 18 February 2022, the Respondent contacted the Complainant advising that they were still awaiting a response from the Department re next steps employees who were currently cocooning and would be in contact with her when they had a further update. The Complainant was also advised that her roster, whilst cocooning, would remain unchanged 09:00-17:00, Monday to Friday. The Complainant was also advised that the 5-week pattern for RSCW roster had not changed, since she commenced cocooning, in line with public health advice.

26. On 16 June 2022, the Complainant, and other employees who were currently cocooning, were contacted by the Respondent and requested to complete an online risk assessment form.

27. On 17 June 2022, the Respondent received a Report from Medmark stating that the Complainant was deemed fit to return to workplace.

28. On 13 July 2022, the Respondent advised the Complainant that she had been deemed fit to return to work by Medmark and that they would require a certificate from her doctor stating same to facilitate her return. This was requested because of her doctor’s concerns regarding her underlying health condition which may have been exacerbated by contracting covid, which has been provided by the Complainant in March 2020.

29. On 13 July 2022, the Complainant responded to thank the Respondent and requested details regarding her manager, unit, team and roster line at their earliest convenience. 44 minutes later, the Complainant sent a further email querying because a cert was required from her GP. She again requested her managers details and asked the Respondent to confirm that full training will be provided on her return to the campus.

30. On 14 July 2022, the Complainant responded and thanked the Respondent for same. The Complainant also made the Respondent aware that she was awaiting a surgery date for August.

31. On 18 July 2022, the Complainant emailed the Respondent to advise that she was unable to secure an appointment until the following week and stated that she was currently on antibiotics for a painful infection and that her GP wanted finish them as her body was very run down. This email was acknowledged by the Respondent on the same day.

32. On 20 July 2022, the Complainant contacted the Respondent to advise that she had an appointment with her GP on the 29th of August, and further to advise that her surgery had been scheduled for the 5th of August.

33. On 29 July 2022, the Complainant provided a medical certificate to the Respondent, which advised that she was medically fit to work but that she was having surgery on the 5th of August and would be off work due to the recovery from same.

34. On 17 August 2022, the Respondent advised the Complainant that while she was absent from work on certified sick leave, a new line manager had been appointed. The Respondent also advised that Senior management, as a gesture of goodwill had advised that the Complainant would remain recorded as cocooning from the 29 July – 4 August, and as per her medical certification, she had been placed on sick leave from 5 August. The Complainant was also advised that next steps/plan for returning to the campus, including her roster, line and team, will be communicated, when she was well enough and could provide a fit to return to work cert.

35. On 16 September 2022, the Complainant advised that she would be reporting fit for work on 30 September 2022, and it was explained to her that a training plan could not be put in place until the organisation are in receipt of a fit to return to work cert and that additionally, she would have to take some annual leave from 3rd October 2022 to give L & D time to put together a training schedule. Other cocooning employees returning to work on 3 October took more than five weeks annual leave prior to commencing their training, due to the high volume of leave they had accrued during their time spent cocooning for medical reasons.

36. On 10 February 2023, the complainant lodged a further compliant with the WRC in relation to same.

On these facts I must find as follows:

Payment of Wages:

CA-00048612-001

The full details of the premium and shift payments which I have not received will be outlined in detail in due course.

CA-00054989-001

The full details of the premium and shift payments which I have not received will be outlined in detail in due course.

The Complainant cannot rely on reasonable accommodation where the actions taken by her employer were made to protect her based on independent occupational health assessments. The Complainant continued to receive her basic pay; however, she was no longer able to fulfil her obligations to be a Child Care Supervisor on a shift roster. The decision not to assign her other duties was because her role did not lend itself to remote working. In those circumstances a claim for shift payments and other premium payments are entirely contrived and lack any sense of what justifies why such payments are made in the first place, which is the onsite care of children. As the shifts could not be worked no contractual right exists for their payment. The Public Health Emergency and guidance primarily operated to protect the health of the Complainant. The complaints made under the Payment of Wages Act are not well founded.

Discrimination:

CA-00048612-002

I was discriminated against on the basis of disability. The circumstances of the discrimination include but are not limited to the following:

The Claimant will provide further and more detailed particulars of her claim in her submission and at the hearing of the Complaint.

CA-00054989-002

I was discriminated against on the basis of disability. The circumstances of the discrimination include but are not limited to the following:

My employer insisted that I not attend the workplace during the period of the Covid 19 pandemic due to my disability. I requested that I be allowed to work from home during this period. While I was permitted to carry on some duties at home, my employer failed, refused and or neglected to reassign duties to me which would allow me to actively participate in the workplace during this period. I was not permitted to return to the workplace, and I lost out on shift allowances, and shift premiums and other premiums which others without disabilities did not lose out on. This has resulted in discriminatory treatment, as others without such condition were permitted to remote working options. This has led to a loss of pay and premium payments.

The Claimant will provide further and more detailed particulars of her claim in her submission and at the hearing of the Complaint

I find that the Complainant was not discriminated on the ground of disability arising from a failure to provide her with reasonable accommodation. The measures taken were solely based on Public Health Guidance and as stated at Article 2(5) of the Employment Framework Directive 2000/78/EC that includes disability provides that:

As the measure taken were solely for the protection of health no discrimination occurred, and it is not appropriate to make out a case for reasonable accommodation having regard to the factual matrix of this case and the careful and considered approach by the Employer to protect her health. I find that Complainant was not discriminated against and dismiss the complaints.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Payment of Wages:

CA-00048612-001

The full details of the premium and shift payments which I have not received will be outlined in detail in due course.

CA-00054989-001

The full details of the premium and shift payments which I have not received will be outlined in detail in due course.

The Complainant cannot rely on reasonable accommodation where the actions taken by her employer were made to protect her based on independent occupational health assessments. The Complainant continued to receive her pay; however, she was no longer able to fulfil her obligations to be a Child Care Supervisor on a shift roster. The decision not to assign her other duties was because her role did not lend itself to remote working. In those circumstances a claim for shift payments and other premium payments are entirely contrived and lack any sense of what justifies why such payments are made in the first place, which is the onsite care of children. As the shifts could not be worked no contractual right exists for their payment. The Public Health Emergency and guidance primarily operated to protect the health of the Complainant. The complaints made under the Payment of Wages Act are not well founded as no unlawful deduction was made.

Discrimination:

CA-00048612-002

I was discriminated against on the basis of disability. The circumstances of the discrimination include but are not limited to the following:

The Claimant will provide further and more detailed particulars of her claim in her submission and at the hearing of the Complaint.

CA-00054989-002

I was discriminated against on the basis of disability. The circumstances of the discrimination include but are not limited to the following:

My employer insisted that I not attend the workplace during the period of the Covid 19 pandemic due to my disability. I requested that I be allowed to work from home during this period. While I was permitted to carry on some duties at home, my employer failed, refused and or neglected to reassign duties to me which would allow me to actively participate in the workplace during this period of time. I was not permitted to return to the workplace, and I lost out on shift allowances, and shift premiums and other premiums which others without disabilities did not lose out on. This has resulted in discriminatory treatment, as others without such condition were permitted to remote working options. This has led to a loss of pay and premium payments.

The Claimant will provide further and more detailed particulars of her claim in her submission and at the hearing of the Complaint

Dated: 10/02/25

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Protection of Health