Complainant

Respondent

Anonymised Parties

A Senior Service Instructor

A Care Service Provider

Representatives

  Self-Represented

Sophie Crosbie IBEC

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-00060190-001

23/11/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave their evidence under affirmation.  Cross examination was facilitated.

As a preliminary matter, the respondent submitted that the hearing should be held in private and the decision should be anonymised due to the nature with the employment, a care training facility, and concerns regarding the identification of persons in care who exhibit troubling behaviours. The complainant agreed with the respondents’ assessment and indicated that he had no difficulty if the matter was held in private and the decision anonymised.

As regards the preliminary submissions by the respondent and the complainant in relation to the issue of a private hearing and subsequent anonymisation of the decision, I was satisfied that this case is one where the matter should be heard in private due to the nature of the employment and concerns regarding the possible identification of a person in care. Having considered carefully the submissions made on this point, I agree that the concerns raised also warrant the decision being issued in an anonymised format.

The complainant submitted that he was excluded from a part of the employment location on the basis of his gender. He noted that he raised concerns regarding the exclusion applying to males only, but that due consideration was not given by the respondent to his concerns. He further submitted that there was no prior engagement with unions or staff in relation to the introduction of this policy and no consideration was given to alternatives that would not give rise to discrimination.

The complainant submitted that the service which he was employed by occupies two rooms at the end of a corridor in what was once a hotel. These are the dining room and kitchen area.  At the other end of that corridor is a door to a smaller stairway with a number of rooms off the corridor. There are a number of rooms available for supervisors to work with clients. The service programmes are built around schedules of groups known as ‘pods’ which operate independently of one another although use the same facilities and operate in the same buildings.

On 25 May 2023, a message was sent within the WhatsApp group between the four senior instructors. A message was sent which proposed to restrict the kitchen and dining room area from male staff and clients as it was suggested that a female client required the area exclusively. The complainant stated that he suggested an alternative but that this was not given due consideration.

At a meeting the following day, chaired by the acting day service manager, the issue of the exclusion of male staff was raised. There was no discussion of the alternative proposed and the acting manager restricted access for male staff and clients from the area.  The complainant submitted that over the following few weeks he tried to talk with the acting manager regarding various possibilities but in the absence of any meaningful engagement from management, he preceded to lodge a complaint with the Workplace Relations Commission.

The complainant noted that following his submission of the complaint to the WRC, a form called the dynamic risk assessment form was referred to. He noted that this does not exist within the respondent’s suite of documentation.

The complainant submitted that if the situation was reversed and it was a female excluded from an area predominantly staffed by males, there would be no issue that it amounted to discrimination.

Complainant evidence:

The complainant stated that he was excluded from an area in the workplace on the basis of his gender, he is male. The complainant stated that it was the opinion of another staff member that male staff should be excluded from the dining and kitchen areas. He noted that he had previously had interpersonal difficulties with that staff member. He noted that the exclusion applied during the lunch time and would require him to cease activities at an earlier stage with the person he supported in order to make lunch at an earlier stage for that person. He noted that the male supported person resided in the centre for a full day, while the female supported person only resided there until shortly after 2pm.

He noted that he was excluded from using this area, but that female staff were not excluded using the area. He noted when the exclusion was suggested it was accepted almost immediately by the acting manager.

The complainant noted that he tried to deal with the issue unofficially but was never allowed the opportunity and therefore he was obliged to submit a complaint to the WRC in order to comply with the timelines outlined in legislation. The complainant submitted that he made multiple attempts to address matters and ultimately in March 2024, he moved to a different working pod where he found himself in a different area of the accommodation.

Under cross examination the complainant confirmed that the acting manager was not a part of the WhatsApp group. It was put to him that there was nothing referring to gender in the minutes of the meeting that took place on 26 May 2023. The complainant confirmed that and noted that that was one of the issues that he was having, in that the minutes did not reflect accurately the discussion that had taken place.

He confirmed that the dynamic risk assessment is a verbal procedure and is not necessarily written down at the time but rather notes are made a later stage. It was put to the complainant that these measures were put in place to protect staff as the female supported client had a tendency to act out in a sexualised fashion. The complainant responded that he did not need to be protected in that way and noted that the measures put in place would not have impacted on anybody else. It was put to him that if a staff member was subject to sexual advances, then they may have the right to take a sexual harassment case and that the respondent had a duty of care to protect staff. The complainant noted that better protection would have been provided by looking at an alternative in the given environment.

It was put to the complainant that there were no changes in his benefits, his hours of work, his sick leave, etc. nor were there changes to his conditions of work. The complainant noted that he was entitled to a freedom of movement within the workplace. It was noted that there were 3 kitchens however the complainant noted that the other kitchens were in use by other care pods and that he couldn't physically leave the person who he was tasked with supporting.

It was put to the complainant that he was directed to the grievance procedure but chose not to go down that route. He noted that at the time the time frame for taking a complaint to the WRC was expiring so he chose to go down that route. It was put to the complainant that he was offered a meeting towards the end of August 2023, he noted that he was offered a meeting but was only offered it with one- or two-days’ notice when the roster was completed two weeks in advance.  He was not in a position to accept the invitation to a meeting

The respondent submitted that the policy was a work instruction and is not a condition of the complainant's employment. The respondent submitted that the work instruction was gender neutral and referred to all staff who were not involved in the ‘care pod’ for a named individual. They respondent submitted that one of its clients was prone to act out or react in the presence of males in a sexualised fashion. In order to protect both service users and staff from possible sexual harassment allegations or acts of a sexualised nature it was imperative to exclude staff and other clients from a kitchen and dining room area where the client was undertaking activities.

The respondent submitted that a protocol document had been drawn up in respect of the female supported person that outlined her triggers of distress as being in the company of unfamiliar men or having unfamiliar men around her. The protocol noted that she acted out and she had used inappropriate sexualised behaviour in the presence of men before. It was noted that this change in behaviour was a recent change, and the decision was taken to exclude all members of staff and clients who were not in the support pod for that client from the dining and kitchen areas. It was submitted that this clinically led decision that had the service user as its primary focal point but that the respondent also had a duty of care to both staff and other service users to try to avoid any escalation of behaviours.

The respondent noted that this was a short-term measure undertaken in the absence of a full-time Day Care manager. It was noted that this was one of a number of decisions taken at a meeting on 26 May 2023. The respondent noted that the complainant only raised his perceived exclusion of male staff the following September noting that his considerations was not taken into account. The acting manager at the time noted that it was unclear whether the complainant wished to raise a grievance or not and accordingly directed him to the grievance procedure.

The respondent noted that the complainant has since moved to a different pod and furthermore that the temporary instruction regarding the dining and kitchen area no longer impact on any stuff

The respondent submitted that a dynamic risk assessment is normal practice for new risks that arise. The respondent submitted that the complainant had failed to identify a comparator in that this was a temporary restriction which applied to all staff and was not gender specific.  The respondent submitted that it is not clear how the employer was discriminating in that the issue of a work instruction is not covered by Section 8(1) of the act.

The respondent submitted that an employer has a right to manage their business appropriately and without the need for negotiation and agreement as would be the case in terms of contractual terms and conditions of employment. The respondent noted the fact that the complainant disagreed with the work instruction but noted that it does not make it inappropriate or provide evidence of unlawful discrimination.

The respondent noted that it has a duty to protect employees and prevent unlawful sexual harassment. Given that the service user had documented potential for inappropriate behaviour around males, there was an onus on it to ensure that these situations did not arise.

The respondent submitted that the complainant has not established facts from which it may be presumed that the principle of equal treatment was not applied to him, as outlined in Southern Health Board v Mitchell [2001] ELR 201. The respondent also noted the case of Cork City Council v McCarthy EDA 21/2008 where it was noted that the law provides that the burden of proof shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination.

Witness evidence:

Respondent Witness #1 Head of HR:

The witness noted that she did not meet the complainant between May and September but met him in May 2024 after the claim was lodged, following mediation. She noted that the complainants outline of the facilities and the work of the respondent was largely correct. She noted that there was a local agreement that staff would work through their breaks by taking breaks with the supported persons within their pod.

Under cross examination, the witness did not recall presenting a copy of the dynamic risk assessment to the complainant. She was asked whether the paper document still existed but was unable to say. As to whether a dynamic risk assessment formed part of the respondent’s suite of documentation she stated that she couldn't comment but noted that she had seen such a form at the meeting with the complainant.

Under redirection the witness stated that any decisions made are made to protect supported persons or staff.

Respondent Witness #2 Sector Manager (former Acting Head of Day Service)

The witness noted that although she was acting head of day service at the location where the complainant worked, she was also responsible for four other locations. She confirmed that the complainant was not a member of the female supported persons team and accordingly would not have had access to the dynamic risk assessment prepared by that team. She confirmed that the document prepared by the residential team outlined a recent change in behaviours on the part of the female supported person.

She confirmed that the nature of the instruction put in place related to all staff and noted that nothing was put in writing other than had brief reference in the minutes of the meeting of 26 May 2023. She noted that there were fourteen staff on for that week: 50% male-50% female. However, she conceded that the only male affected was the complainant.

The witness noted that she was engaging with the complainant over the summer regarding a number of things and the issue of access to the kitchen area was not raised until September. The witness noted that the male supported person does not require the kitchen to eat his lunch rather taking a sandwich or a light lunch in a room to himself.

The witness noted that the practise of excluding staff from the dining kitchen area ceased on 13 October 2023.

Under cross examination the witness confirmed that she was very busy at the time and that there had been an interpersonal dispute between the complainant and a colleague, that colleague was the person who took the minutes of the meeting of 26 May 2023.

It was put to the witness that whenever the complainant raised anything regarding the gender specific nature of the complaint he was never corrected. The witness conceded this point. The witness was asked whether the female supported persons behaviours improved after this practise was introduced but could neither confirm nor deny this. It was put to the witness that there was an impact on two staff members one of whom was male, and that female did access the kitchen and dining area during that time.

The witness stated that there were other kitchens available for the use of staff, but it was put to her that this was not possible: a staff member cannot leave the area where their supported person is located. The witness was asked were there any facilities were provided, she did not answer to question but stated that senior staff could have bought items to use in a temporary eating/food preparation area. It was put to her that the issue is not followed up by management and the witness noted that this would have been a senior instructor’s role, including that of the complainant to follow up on this matter.

Under redirection the witness confirmed that she was not aware of the existence of the WhatsApp group and was not aware of any gender implications of the work direction.

The complainant submitted that he was discriminated against on the basis of gender when the respondent brought in a policy excluding male staff and service users from a dining and kitchen area. The respondent submitted that a gender-neutral work instruction was introduced on a temporary basis to cater for the specific needs of female service user. It submitted that the instruction does not amount to discrimination under Section 8 (1) of the Act.

Section 8(1) of the Act states:

Discrimination by employers etc.

8.—(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.

(2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

(3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to 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.

(7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

On the face of it the complainant’s case does not seem to fall into the definition provided under Section 8(1). 

The respondent argued that the work instruction was not directed at male staff or clients. The complainant stated at the direction was aimed at male staff. However no written documentation was provided to clarify what the work direction actually stated. The respondent’s position is emphatic that it was a gender neutral direction aimed at all staff. Whilst the evidence is not conclusive either way, if I am prepared to give the respondent the benefit of the doubt and conclude that the work direction was phrased in it gender neutral matter, the evidence of the complainant, which was not contradicted by any evidence of respondents witness, is that the effect of the work instruction was to exclude male staff from the dining and kitchen areas.  More particularly it appears individuals to have singled out one male, notably the complainant, and seemed to have put him at a particular disadvantage.  This appears to bring the issue of indirect discrimination into focus in relation to this complaint.

Section 22(1) relates to indirect discrimination on the gender ground and states:

Indirect discrimination on the gender ground.

22.—(1) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.

 (b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

From an examination of the facts, it appears that the claim before me falls squarely under section 22(1)(a).  Accordingly, I find that this complaint is well founded.

Section 85A(1) 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.

Section 85A(4) states:

(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 respondent, although they outlined a legitimate aim at the hearing, appears not to have put anything in writing not least their objective justification for the indirect discrimination.  From the evidence of the witnesses for both parties, nothing was detailed in writing regarding the appropriateness of the steps taken by the respondent either.  Had they put this in writing then the issue would have been to look at the means of achieving the aim and to see where they appropriate or necessary.

However, I am satisfied that the complainant has established facts from which indirect discrimination as been established.  It fell on the respondent to prove the contrary and I find that they have not done so, nor have they established the objective justification for the indirect discrimination.  Accordingly, I am satisfied that the complainant was discriminated against.

In the circumstances of this case, where the complainant was only excluded from the dining and kitchen area for two days per week, I am inclined to make a small award.  However, I note that the local arrangements denied the complainant the right to take breaks away from the person he supported, and accordingly he was denied the same consideration as the remainder of his predominantly female colleagues, to use a kitchen area and dining area to take breaks, I consider that an award of €2000 is just and equitable in all the circumstances.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was discriminated against and I award the complainant compensation of €2000 which I consider to be just and equitable in all the circumstances of this case.

Employment Equality – Indirect discrimination – no justification in writing – discrimination established – award of compensation