Complainant

Respondent

Anonymised Parties

A Patient

A Hospital

Representatives

Caroline Flynn

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00061423-001

07/02/2024

The complainant submits that she was discriminated against and harassed by Ms A a Health Care Assistant (HCA) on the grounds of race when the complainant attended an emergency department within the respondent’s hospital.  The respondent denies the complaint.

Preliminary Issue #1:

The complainant requested that her name be anonymised because of her illness.

Preliminary Issue #2:

By way of response to the allegation that the complaint was out of time, the complainant submitted that the incident occurred most likely on 18/01/2023 and that she had communicated a complaint of discrimination on the night in question and followed up with communication around early Feb 2023 and this was responded to on 08/02/2023 and she also emailed again on 20/02/2023 and this was responded to on 21/03/2023 and she may have emailed again on 27/03/2023 and 17/07/2023 and got a response on 18/07/2023.  She was advised to contact the Ombudsman which she did around 19/07/2023 and the case was closed by them on 06/12/2023 who advised her to contact the WRC and on advice of the WRC she sent an ES1 dated 18/12/2023 to the respondent and her complaint was received by the WRC on 07/02/2024.  She advised that she utilised the various stages of the respondent’s procedures regarding complaints.

Under Cross examination regarding the timelines the complainant said that she did receive some correspondence and they were mostly prompt except for in July when she did not hear anything and that she had changed address.  She said that the respondent had advised her to contact the ombudsman in their correspondence dated 16/03/2023.

Substantive Issue:

The complainant submits that she experienced a very dehumanizing and was racially discriminated against, by a health care assistant Ms A in the Emergency Department of a hospital.  She submitted that Ms A was not directly involved in her care yet breached her right to respect, confidentiality and privacy and referred to the complainant’s race in a way that suggested that the complainant should be ashamed of being African.

The complainant gave evidence that she has difficulty with movement in her leg and right arm and shoulder and has a diagnosis of sickle cell.  She said on 17/01/2023 she went to hospital and she was advised by the doctor that she needed a bed.  A nurse whispered discreetly to her that the complainant had tested positive for covid and was told that it had been two weeks ago that she may have had it and not to worry.  The complainant said she felt relieved that she was nearly over it.  The nurse advised her that she would be moved from where she was and the complainant was wearing a mask and the complainant changed masks to a different one at the request of the nurse and appreciated how nice the nurse was to her. 

A health care assistant (HCA) Ms A passed by her and said the complainant had to wear the surgical mask and the complainant did not take Ms A seriously as she was already wearing a mask and did not think the HCA was talking to her and the HCA repeated that she was talking to the complainant.  Ms A said that the complainant would infect everyone and the complainant told Ms that she was creating fear. 

The complainant said that a doctor came over to the complainant and said she could remove the mask as she was now clear of covid as it had been 2 weeks before.  The complainant said how discrete the nurse had been to her and kind previously.  Ms A HCA walked passed the complainant again when the complainant was eating food and said to the complainant “good for nothing, black ass wear your mask”.  The complainant reported this to a nurse and was told that the HCA should not have said this.  Later a nurse told the complainant that she would be moved to Ward A but as she was moving she was told it would be Ward B because she had covid and covid patients needed to go to Ward B.  The complainant said that the test only showed a trace for covid as she was nearly over it and the nurse asked her was she going to go to the ward or not go and then left her there in the emergency department with a drip in her. 

The complainant said she uses crutches and was unable to go to the toilet and another nurse approached her and apologised for what had happened.  A doctor also asked why the complainant would be moved to Ward B which was not suitable for the complainant as she is auto immune compromised.  The complainant said she was very upset and phoned for someone to take her home and as she was waiting Ms A screamed at a porter that the complainant was covid positive.  The complainant said how upsetting it was and that Ms A was breaching confidentiality and asked Ms A what was her problem and what happened to confidentiality and said to Ms A that she was not covid positive and albeit she was waiting for a scan, she just wanted to go home as it was so distressing. 

The complainant said in evidence that another staff member who was very kind stood up for the complainant and tried to convince the complainant to stay for further treatment but the complainant just wanted to go home.  The porter never returned to her after her scan and she had to walk back to the emergency department and was comforted by a nurse who was very kind to her.  Ms A again walked by her and repeated again that the complainant had covid and the complainant told her that she hoped that Ms A would never be in the position that the complainant was and that Ms A was never part of the care team and she just kept interfering to bully the complainant. 

The complainant said she left and remained unwell and in January 2023 she sent a complaint about how she was treated and was contacted by Ms B who later contacted the complainant and said that Ms A denied what had been said.  The complainant said that all she wanted was an apology and that she hoped that this would not happen to someone else in a similar situation and that she never felt there was any remorse.  She did not know the names of those involved in the incident as she had been so unwell.  The complainant also made contact with the ombudsman who said that the complainant needed to go to the WRC.

Under cross examination the complainant said she was discharged from hospital on 19/01/2023 and then confirmed it may have been 18/01/2023 as she had arrived at the hospital on 17/01/2023 around 09:45 and left around 17:30 on 18/01/2023 the incident had occurred between 3-6pm and that a friend had brought her home.

Preliminary Issue #1:

The respondent submitted that they had no objection to the request to anonymise the decision and if a decision was made to name parties they requested that Ms A be anonymised as it would be unfair on her to be named for allegations of discrimination.

Preliminary Issue #2:

It was submitted that the complaint was out of time as the complainant had not submitted her complaint to the WRC until 07/02/2024 and her ES1 had been received on 18/12/2023 regarding an incident around 18/01/2023.  It was confirmed that she had contacted the respondent by email around Feb 2023 and this was responded to on 08/02/2023 and she also emailed again on 20/02/2023 and this was responded to on 21/03/2023 and she may have emailed again on 27/03/2023 and 17/07/2023 and got a response on 18/07/2023.

Substantive Issue:

The respondent submitted that they received an email on 28/02/2023 from the complainant with feedback on a recent visit the complainant had at the emergency department.  The complainant complained of the behaviour of a Health Care Assistant, Ms A whom she did not name.  Ms B was contacted regarding this as it occurred in her department.  The investigation outlined that the health care assistant Ms A who had interacted with the complainant confirmed that she told the complainant to wear a mask and denied that she discriminated against her.  She advised during the investigation that she had been advised that the complainant had Covid and said she did not know that the complainant was no longer deemed infectious.  Ms A had recalled an interaction with a porter and telling the porter that he needed to gown up and apologised if the complainant over heard this.  The investigation also outlined that the porter recalled being advised to gown up by Ms A but did not recall being told that she had covid. 

When the complainant requested on 22/03/2023 that stage 3 internal review take place this was conducted. In a statement on 06/04/2023 the porter had outlined that the complainant had said the complainant was hostile and that she had said that Ms A was racist. Further investigations were undertaken and the complainant was updated on the status of her complaint.  It was submitted that the complainant’s complaint was investigated and that she was not satisfied with the outcome and it was submitted that Ms A apologised for any distress caused or misunderstanding but denied bullying or being racist and acknowledged that this apology was not passed to the complainant.

The evidence of Ms B, Assistant Director of Nursing was that when she was told the details of the complainant’s complaint 2023 she spoke to Ms A, the HCA against whom the allegation was made and who denied the allegation of racism. She spoke again with Ms A when more details were sent in by the complainant around 07/04/2023 and also spoke to the porter involved and the other staff who had been referred to.  She said it had been difficult to find all the information as the emergency department have their own medical records separate to other hospital records.

Under cross examination Ms B said all staff are informed of relevant health issues such as covid and that Ms A was acting within procedures when requesting the complainant to put on her mask.  She could not explain why the complainant had not received one of the letters that had been sent.  She said that if the porter knew that someone has made an allegation then it should have been escalated to their line manager and this did not appear to be done.  She confirmed that it appeared that the HCA was not given the most UpToDate information regarding the complainant’s covid status.  The onus would be with the nurses and doctors to update relevant staff.

The evidence of Ms A was that she was the HCA against whom the complaints were made.  She said that she recalled that she had been told the complainant had covid and that she asked the complainant would she mind putting on her mask and the complainant said is it because I am black and she did not respond to the complainant.  Later on she had to go back down the corridor where the complainant was but did not mention anything about covid and said to the porter that he should be wearing PCP and he said he did not know that the complainant had covid.    Ms A said she was surprised to see the complainant in the location that she was with covid and the complainant shouted at Ms A.

Under cross examination, Ms A said that she had been working in that department for nearly 10 years and that when she asked the complainant to put on her mask the complainant said are you asking me this because I am black, she did not report this and that this was something that she would normally report  and she said she is not racist and did not speak to her in a racist manner.  She denied making any reference to the colour of the complainant’s skin.  She said that she apologised if she caused distress and that she was only carrying out the covid protocol and that part of her job is to remind people of procedures such as mask-wearing.  Ms A said she was told at report on 18/01/2023 about the complainant having covid.  She said she never told the porter that the complainant had covid but she did say to him to gown up.

The complainant submits that she was discriminated against and harassed by the respondent who made reference to the colour of her skin when instructing her about mask wearing and breached her confidentiality and privacy during a time she was seeking treatment in an emergency department.  The respondent submitted that the complainant was instructed about mask wearing but denies that reference was made to her skin colour and denies the complaints.

Preliminary Issue #1:

The Complainant requested that the decision be anonymised because of her medical condition.  The respondent outlined that they had no objection to this and requested that the decision anonymise the names of those employees against whom allegations were made.

WRC hearings involving the administration of justice (that is all WRC cases save for those for disputes under s.13 Industrial Relations Act 1969), are conducted in public unless the relevant Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private.  ‘Special circumstances may include the following non-exhaustive list: cases involving a minor; circumstances where a party has a disability or medical condition, which they do not wish to be revealed; cases involving issues of a sensitive nature such as sexual harassment complaints etc.  Having considered all the submissions including the complainant’s medical condition I have made the decision to anonymise the decision.

Preliminary Issue #2

The respondent outlined that the claims referred to by the complainant are statute barred and accordingly should be dismissed.

Section 21 provides that

—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission…

(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commissionor, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

 (2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

 (b) In deciding whether to give a direction under paragraph (a)(ii) the  Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

(4) The Director of the Workplace Relations Commissionor, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).

(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

 (b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court] may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

It is notable that Section 7 provides that ….

Where a delay by a complainant in referring a case under this Act is due to any misrepresentation by the respondent, subsection (6)(a) shall apply as if the references to the date of occurrence of prohibited conduct were references to the date on which the misrepresentation came to the complainant’s notice.

 (7A) (a) Not later than 42 days from the date of a decision of the Director of the Workplace Relations Commission on an application by a complainant for an extension of time under subsection (3) or (6), the complainant or respondent may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission specifying the grounds of the appeal.

The complainant submits that there was reasonable cause why an ES1 was not sent within the 2 months of the complaint.  I note that the complainant outlined some details of her complaint on the day of the incident which appears to have been 18/01/2023 and outlined it also in an email dated 25/02/2023 and sent other correspondence thereafter.  As set out in McGovern J in County Louth Vocational Educational Committee v. Equality Tribunal [2009 No. 223 J.R. albeit the complainant did not utilise an ES1 within the time frame, the ES1 is not a statutory form and the respondent was on notice of the complaint. 

The complainant’s complaint was not received however, by the WRC until 07/02/2024 over 12 months after the incident.  While it may have been more appropriate if the respondent advised the complainant to refer her complaint to the WRC as well as the ombudsman as they were aware of the discriminatory allegations within, however, I do not find that such failures were due to any misrepresentation by the respondent.  I note that referral to the Ombudsman  appeared to be the next stage in their procedure and importantly, the complainant was not precluded from submitting a claim to both the Ombudsman and Workplace Relations Commission. 

The complaint to the Ombudsman was closed on 06/12/2024 who then advised the complainant that a claim of discrimination was a matter for the “Workplace Relations Commission to determine”. Taking into consideration all the circumstances of the claim I find that the incident occurred on 18/01/2023 and the complaint was received by the WRC on 07/02/2024 outside the 6 month and additional 6 months of the time limits where there was reasonable cause and therefore I do not have jurisdiction to hear this complaint.    The complaint is out of time and is accordingly statute barred and I must dismiss the complaint.

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  The complaint is out of time and is accordingly statute barred and I must dismiss the complaint.

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Equal status, reasonable cause, ES1, discrimination, misrepresentation