Complainant

Respondent

Parties

Theresa  Mc Ateer

Legal Aid Board

Representatives

  N/A

MP Guinness BL instructed by  Holmes O'Malley Sexton Solicitors

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-00062914-001

19/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00062914-002

19/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00062914-003

19/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00062953-001

22/04/2024

The Complainant was employed by the Respondent as a solicitor since 2001. She stated in the first instance that she was discriminated, harassed and victimised on various occasions during her employment. She also stated that she was penalised by the Respondent because of a previous complaint that she made to the WRC. 

CA-00062914-001:

The Complainant stated that she has a disability and that the Respondent had been on notice of that disability for over a decade.

She stated that she was discriminated against on the grounds of her disability under s.6 and s.8 (8) (a) of the Employment Equality Act in that the Respondent :

a): did not notify her of an internal promotional opportunity available to her when she was on sick leave from December 2021 until September 2023. Specifically, this promotional opportunity was for the position of Acting Director of Internal Services, advertised in April 2023. This was unlike a named comparator C who was notified of the promotional opportunity. She further stated that the Respondent penalised her when they did not make her aware of the promotional opportunity for the position of permanent Director of Internal Services, advertised on 6 October 2023.

b) harassed, victimised and discriminated her, via its agent the NSSO, in relation to the calculation of her Temporary Rehabilitation Payments (TRR), by issuing to her overpayment notices, wrongly calculated, that took no countenance of her occupational injury sick leave, issuing such threatening correspondence up to and including 20 February 2024, on which date she was given notice of a proposal that deductions would be made from her pay at a time when the Respondent was fully on notice that the overpayments were wrongly calculated.

CA-00062953-001

She stated that she was penalised by the Respondent under section 27 of the Organisation of Working Time Act, 1997 following a complaint she made to the WRC on 20 January 2022, in respect of which she was successful at the Labour Court (DWT2318).

She stated in evidence, in relation to this complaint, that the Respondent refused to correct her work record history despite her notifying them of the error on 8 November 2023. She also asserted that, because of their refusal to make this correction, the Respondent misled the Public Appointments Service from November 2023 regarding her sick leave record despite an excellent reference from her own line manager and caused her a six-month delay in taking up a new employment opportunity and thus caused financial loss. She stated that they did this by refusing both to exercise their discretion under Civil Service Circular 12/2023 to discount her sick leave and to amend her sick leave record. She further stated that they were not entitled to provide the Public Appointments Service with her medical data.

CA-00062914-001:

a): The Respondent stated that all advertisements are placed on the Respondent’s intranet and that it is accessible for all staff via the Respondent’s laptops when logged in remotely.  The Respondent further stated that due to a clerical error, no staff on leave received the notification that the position of Acting Director of Internal Services had been advertised.

b): The Respondent stated that the NSSO calculated the overpayment notices and that there was no instruction sent by them to the NSSO. It was further asserted that there are delays with the NSSO processing times and staff members frequently receive notifications after an overpayment has occurred, owing to sick leave thresholds being exceeded.

CA-00062953-001

The Respondent highlighted that the NSSO deals with the recording of sick leave. The Respondent stated that the NSSO informed them that the amendments the Complainant was seeking were not possible, owing to the nature of the system used to record all absences for all civil servants.

The Respondent also highlighted that the Complainant’s case was referred to the CMO for consideration. The CMO reverted on both 10 and 17 November stating that as he did not believe that any of the certified absences were non-recurrent, he did not recommend the discounting of the Complainant’s certified sick leave.

It was further stated that the Complainant included the Respondent as a reference on her application for a promotion and it was on this basis that the PAS (Public Appointments Service) contacted them seeking specific details around her attendance and sick leave records which the Respondent stated they were obliged to give. In terms of the response to the question from PAS as to whether her attendance was satisfactory, the Respondent stated that they had little choice than to say that it was not satisfactory given that the Complainant had taken 840.30 sick days in the previous four years.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

CA-00062914-001:

Relevant Law

Discrimination in accordance with the Employment Equality Act 1998 (as amended) (hereinafter referred to as “the 1998 Act”) is set out in section 6 and states:

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,

( b ) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

Harassment

Section 14A provides that;-

(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer, (ii) the victim's employer, or (iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(7) (a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, (b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. (c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Victimisation

Section 74(2) provides:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Burden of proof

Section 85A of the 1998 Act provides as follows:

“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.”

The effect of section 85A of the 1998 Act above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, the responsibility is on the Complainant to show that, based on the primary facts, she was discriminated against because of her disability, as she asserted.

The approach to this issue, and the test for applying section 85A of the 1998 Act, is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v. Southern Health Board [2001] 12 E.L.R. 201 wherein the Labour Court stated:

“the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Once the prima facie case is established, the Respondent must rebut the prima facie case.

The first aspect of the Complainant’s complaint is that she was not informed of a promotional opportunity for the permanent position of Director of Internal Services which was advertised on 6 October 2023 and that her chosen comparator, C, was.

I note firstly that this complaint was referred to the WRC on 19 April 2024 and that section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Therefore, the cognisable period is the six-month period from 20 October 2023 to 19 April 2024. 

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” 

It is a matter for the Complainant to establish that there is reasonable cause for the delay.  As no reasonable cause was presented by the Complainant for the extension of time, I find that I have no jurisdiction to determine this aspect of the complaint given that the discriminatory act, namely the advertisement for the permanent position of Director of Internal Services, was posted on 6 October 2023.

In line with the findings of the Labour Court in Hurley (EDA1124), it is necessary that a discriminatory act occurred within the cognisable period for an event or events occurring outside of that period to be considered as part of a continuum or regime of discrimination and consequently within the jurisdiction of the WRC under the Acts.

Having determined that the Complainant was not the subject of discriminatory treatment in relation to the advertisement of a role in the period between 20 October 2023 and 19 April 2024, for the purposes of s 77(5)(a) of the Acts, I find I have no jurisdiction to consider the discriminatory treatment alleged to have occurred in April 2023 in relation to the alleged failure by the Respondent to advise her of the vacancy for the Acting position of Director of Internal Services.

Turning now to the allegations that the Respondent discriminated, harassed and victimised her in relation to the calculation of her Temporary Rehabilitation Payments (TRR), I note firstly that no evidence was presented by the Complainant to suggest that there was any instruction sent by the Respondent to the NSSO in relation to the recalculation of her TRR. I further note the Labour Court decision in Arturs Valpeters v. Melbury Developments Ltd where it was found that for a complaint of discrimination to successful, it

“requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

As the Complainant only speculated and failed to present any evidence from which an inference of discrimination could be drawn to suggest that the Respondent colluded with the NSSO in relation to the recalculation of her TRR, I find both that she has not established a prima facie case of discrimination on the grounds of her disability in respect of this aspect of her complaint and that she was not subjected to harassment contrary to Section 14A of the Acts. 

The Complainant also alleged that the Respondent victimised her in relation to the calculation of her Temporary Rehabilitation Payments (TRR). In examining this allegation, I note that in the case of Tom Barrett -v- Department of Defence EDA1017, the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out.  It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant.

Given that there was no evidence presented by the Complainant to suggest that anyone in the NSSO was aware of a protected act having been taken by her, I find that she has failed to establish facts from which it could be inferred that she was subjected to victimisation within the meaning of Section 74(2) of the Acts in the within case.  

CA-00062953-001

The Law:

An employer must not penalise or threaten to penalise employees who exercise their rights under the Organisation of Working Time Act 1997, as amended (the “OWTA”). Penalisation will be widely construed to include anything that causes detriment to the employee as a result of having asserted their rights.

Section 26 of the OWTA, provides:

“(1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.”

The Complainant stated that she was penalised by the Respondent following a complaint she made to the WRC on 20 January 2022 in respect of which she was successful at the Labour Court (DWT2318).

Applying the same principles as those used by the Labour Court in the case of Toni & Guy Blackrock Limited and Paul O’Neill (HSD 095), I find that the Complainant must establish she was penalised, as she alleged, because she made a complaint to the WRC on 20 January 2022, under the Organisation of Working Time Act 1997.

I note firstly that the Respondent accepted a recommendation from the CMO, on both 10 and 17 November, not to discount her sick leave. Additionally, I noted that the Complainant’s sick leave records were maintained by the NSSO, which is an entirely separate body from the Respondent, and that the Respondent had no control around how these sick days were recorded. I also do not consider that the Respondent’s HR Manager could have answered anything other than that the Complainant’s attendance record was not satisfactory when contacted by the Public Appointments Service, given that she had a sick leave record of 840.3 sick days in the previous four years.

Considering all of the foregoing, I find that the Complainant has failed to establish a connection between the protected act, namely a referral of a complaint under the Organisation of Working Time Act 1997, and the alleged penalisation. Accordingly, I find that her complaint is not well founded.   

CA-00062914-001:

I find that

·       I do not have jurisdiction to hear the first aspect of the Complainant’s complaint because it is out of time

·       The Complainant has failed to establish either a prima facie case of harassment by the Respondent contrary to Section 14A of those Acts or that she was subjected to victimisation contrary to Section 74(2) of the Acts in relation to the second aspect of her complaint.

CA-00062953-001:

I find that this complaint is not well founded for the reasons set out above.