Complainant

Respondent

Parties

Catherine  Power

Department Of Housing, Local Government And Heritage

Representatives

Allan Crann BL instructed by Sean Ormonde & Co. Solicitors

Niall Fahey BL instructed by the Chief State Solicitor's Office  

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-00053417-001

24/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00053417-002

24/10/2022

The Complainant is a civil servant employed by the Respondent government department.

In 2022 the Complainant had recently been promoted to the grade of Higher Executive Officer and was was serving out her probation at her new grade.

The Respondent was beginning to roll out return to the office as the covid-19 restrictions had finally ended. In February 2022 a particular date was set in by which an employee must serve at least one day in the office. Shortly before this date, the Complainant had a significant family issue in that her husband was injured, and she requested to remain working remotely to facilitate childcare. This request was denied.

The Complainant then failed her upcoming 6 month probation review meeting. This resulted in her having to return to the office full time.

The Complainant submitted two complaints, one under the Employment Equality Acts, alleging that she had been discriminated against on the basis of family status.

The second complaint was under the Safety Health and Welfare at Work act alleging that her treatment was in retaliation for having raised a complaint regarding a member of management.

The Complainant provided evidence under affirmation. Mr Crann BL made detailed and oral submissions on her behalf.

The Complainant submits that she was working well in her new role and suddenly after seeking accommodation for her family status on one day her relationship with her team rapidly detioriated and she was failed probation.

Mr Fahey BL for the Respondent made detailed oral and written submissions of their behalf.

The Respondent submits they legitimately and fairly assessed the Complainant’s performance in April 2022. She suffered not discrimination from the Respondent and she was facilitated with extensive family related leave and paid sick leave. The Complainant ultimately passed probation.

The following civil servants gave evidence for the Respondent under oath or affirmation; Ms Orla Joyce,  Mr Cathal Peppard, Ms Lynn Carroll.

Complaint Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Complainant did not advance a substantive case under this complaint. She provided evidence of family status discrimination. The issues which post date her dignity at work complaint in late May would seem to relate to the probation result in April, which she says was discriminatory.

Complaint under section 77 of the Employment Equality Act, 1998

Background

The Complainant began working for the Respondent in August 2018 as an Executive Officer. She had joined via an open competition and her background was in the private sector. She had performed well in this role and was asked to represent the Respondent in some interdepartmental initivatives and was proactive in pariticpating in their wellness group and set up their Executive Officer network. Through these initiatives she was able to have a higher degree of exposure than someone would normally have in this role and would have opportunities to interact with Assistant Secretaries who are the senior tier of management in a government department.

She applied for and was granted promotion to Higher Exeuective Officer (“HEO”) in the Summer of 2020. This was through an interdepartmental competition rather than a internal department only competition as such it was a more competitive process.

The Complainant was originally given a role in the Department of Environment but the Respondent’s HR department sought to retain her within the Respondent and she agreed to this. She was appointed to the new team which was formed as Stategic Humanc Resources Information Management and International (“SHRMI”). This was headed up by a Principal Officer Ms Lynn Carroll. The Complainant reported to an Assistant Principal working directly under Ms Carroll, Ms Orla Joyce. Much of her role on this team was to administrate and coordinate requests from other state and EU agencies looking for observations on their own papers and proposals. Their role was to liaise with the relevant internal departments and canvass and collate their feedback for those agencies. Despite being a promotion the Complainant found this role to be more of a glorified postal worker, going between departments, compared to her old, more junior, role in the HAP department where she was problem solving and front facing.

She commenced this role in October 2021. She was subject to a 12 month probationary period. Covid-19 restrictions were still in place so she was working entirely remotely from home and as such all her early interactions with Ms Carroll and Ms Joyce were remote or by phone. Ms Carroll, because of her strategic HR role was overseeing the return to the office. The Respondent initially communicated a return to the office in September 2021 but this was pushed off.  

The probation process involves a 3 month review, a 6 month review and a 9 month review and then it is finalised at 12 months. The 9 month review is extremely important as if someone is going to fail probation it needs to be clearly flagged by that point.

Ms Joyce started at the end of November and completed her probation at 3 months which was successful.

In Febrary 2022 the Respondent determined that a phase one return to the office would finally occour. This involved planning room occupancy limits and a general revised understanding of capacity in the office. Two weeks notice were given that every member of staff must return to at least one day a week from a date in February.

The Complainant was of the view that this gave her an extremely small window to retain childcare and particularly to arrange for a one day or two day a week childcare provision. Ms Carroll’s evidence was that the return to office was clearly coming for months and had only been put off due to sudden changes in Government direction.

The Complainant initially engaged with Ms Joyce who seemed to want to find a solution and provide for one day in two weeks. This was denied and after some back and forth the Complainant agreed to come in on Friday the 25th of February. However on the 18th of February the Complainant’s husband injured himself and was bedridden. She went to Ms Joyce and requested to be allowed work from home the whole week and not to come in on the Friday. Ms Joyce then tried to arrange this with Ms Carroll who determined that it was not possible. At the time the Complainant didn’t request any sort of leave. She was seeking to work from home.

After these interactions with Ms Joyce the Complainant’s evidence was that she immediately noticed an impact on her relationship with the Respondent. She had a number of meetings cancelled on short notice. The Complainant was in the office on the 24th of February and this was the first time she met Ms Joyce. She was clear that she was not asking not to work she was asking to work from home. After this she felt the relationship with management nosedived. Her evidence was that her impression from Ms Joyce that this was coming from Ms Carroll.  Soon after she had the only member of staff who directly reported to her, a clerical officer, moved to reporting under Ms Joyce. Ms Carroll provided evidence that this was to do with the distribution of workload and not targeted.  

The Complainant’s 6 month probation was approaching in April. She had submitted her goals in March and they hadn’t actually been agreed. On Monday the 25th of April these were signed off. The following day she had her probation review and much to her surprise the Complainant failed the review. She had no notice that she was at risk of failing probation. Ms Joyce had been quite complimentary in the past. The Complainant’s evidence was that Ms Joyce read from what seemed to be a prepared statement and didn’t engage with her when she challenged the examples of poor performance.

Alleged Discrimination on Family Status

The Complainant’s case is that she was suddenly treated radically different by the Respondent as a result of her request to work from home rather than return to the office for one day in February which she says in inextricably linked to her family status. The evidence of Ms Carroll was that the Respondent set a hard deadline for a return to the office of at least one day with the only exceptions being medical and signed off by the Chief Medical Officer.

Throughout the course of the hearing four separate employees of the Respondent gave evidence, including the Complainant. Each and every one of these employees had at some stage been in receipt of extended leave to allow them to attend to family, bearavement or other caring duties. From the outset there does not seem to be any tenable argument that the Respondent is a particularly uncaring employer and would take any sort of issue with an employee facilitating caring duties or their family status. Compared to others they would seem to be quite a generous employer in this regard.

It is of course possible that the Complainant’s treatment was down to a member of management choosing to target her for her family status and the employer facilitated this unwittingly. Ms Carroll was certainly the focus of the Complainant’s case in this regard. However it must be noted that she confirmed the Complainant’s term time which she had agreed with a previous department before transfer but needed to be apporved with Ms Carroll. That obviously concerns a far greater time period out of the office than the single day that the Complainant requested to work from home. It is unlikely in those circumstances that Ms Carroll engaged in any sort direct penalisation of the Complainant for her family status.

However, there is a further argument that the Complainant’s counsel did raise, which is that the return to the office was being overseen by Ms Carroll for the entire Department. There was significant pressure to get employees back to work in the office at least one day a week. The  Complainant  was on Ms Carroll’s team and was, on short notice asking to stay out. This was related to her family status in that she needed to be at home to facilitate childcare while her husband was injured. The suggestion is that the Complainant’s family status indirectly resulted in a some sort of penalisation from Ms Carroll because she was annoyed the Complainant had tried to seek an exception to the mandated return to office one day a week.

Leaving aside the legal arguments surrounding this issue and whether it would in fact be family status discrimination, this does bring the case to a relatively net question, was the Complainant failing probation at six months related to her asking to stay out of the office in February?

While the 6 month probation result was not the only issue the Complainant raised the other matters, such as her having to return to the office five days a week in the autumn and her accidentally being sent a PIP document, were natural results from her failing probation. She was absent on sick leave or term time for most of the Summer and passed at the 9 month point and transferred out of the Department at the end of the year.

Findings regarding probation

The Complainant has established a number of issues with the probation report.  There are a number of performance matters referred to the by the Respondent witnesses and submissions which don’t seem to appear in the probation documents or post date them. The Complainant’s evidence was that almost all of these were not brought up with her at the time.

Ms Joyce did accept that she may not have provided direct enough feedback and accepted many of the criticisms of the probation review and that it was not a full account of the issues she and Ms Carroll were now citing about the Complainant’s performance.

While I am live to the Complainant’s concern that the Respondent is seeking to mend their hand with matters not brought to her attention at the time, it is important to judge any process in the context of when it happened. This was a probation process for a promotional grade which would not result in dismissal and was the first step in indicated that the Complainant could potentially be put back down to her previous grade. Though that the process was flawed it does not necessarily follow that it was unrelated to performance and an attempt at retaliation.  

The Complainant’s evidence was that she did received feedback that some of her emails were too long but this was only brought to her attention on one occasion. Ms Joyce and Ms Carroll appeared to disagree on this and suggest not only was this brought to the Complainant’s attention but that she was resistant to that feedback.

Emails submitted by the Complainant around the 16th of February also indicate that Ms Carroll and Ms Joyce had some concerns regarding the Complainant’s performance.  

The Complainant was criticised for delay in delivering new updated procedural documents and manuals. The Complainant’s evidence that she suggested these and volunteered for them and had not agreed time frame. Ms Carroll’s evidence was that there were actually initiated at her instruction and that the Complainant had put them on the long finger.

More generally Ms Joyce evidence was that she was not satisfied with the Complainant’s  response time and lengthy emails. She felt the complainant lacked consistency in her work. She referred to issues with attention to detail and a lack of autonomy and initiative in her evidence and generally held the view that the Complainant was not meeting the standard for the HEO grade as she had when she was in the grade.

Ms Carroll’s evidence was that she observed that Ms Joyce spent significant time reviewing and remediating the Complainant’s work which limited the transfer of workload to the Complainant. She felt the Complainant was resistant to feedback regarding her interactions with other units.

Ms Carroll’s evidence was also that she had early concerns about the Complainant’s communication style. She believed that the Complainant desired more status than her role provided. Ms Carroll evidence was that she was of the view that relationships and profile within the Department are built through diligent work rather than excessive communication which she believed the Complainant was engaged in.

The Complainant accepts that she contacted a person at Assistant Secretatary level directly in the course of her work which had raised concerns with Ms Joyce. Her evidence was that she was initially brought into a delivery meeting related to a specific project with Ms Joyce’s agreement. She realised some of the information being circulated ahead of the meeting was not up to date. She sent a message to Ms Joyce and had no reply as Ms Joyce was on leave. So she alerted the Assistant Secretary to this issue who emailed her regarding updates. Ms Joyce did later ask why the Assistant Secretary was contacting her directly.

It is accepted that the Complainant emailed an Assistant Secretary almost immediately after a negative probation review meeting citing her concerns with the process.

Conclusion:

As outlined above I am of the view that the key issue is whether the probation decision and associated requirements (such as full office return) were linked to the request to stay out of the office one day a week.

I am satisfied on review of the evidence that there were concerns about the Complainant’s communication style, responsiveness, and alignment with organisational expectations, particularly around direct engagement with senior management.

Even in the context of a flawed process, I am satisfied that on the balance of probabilities, these issues resulted in the probation being failed at 6 months not the request to work from home in February.

For the avoidance of doubt, mindful of the legal arguments which I have not determined, if the burden of proof is on the Respondent to prove that the probation review was unrelated to the request for remote working, I am satisfied that there is sufficient evidence that they have met that burden.

CA-00053417-001

I find that the complaint is not well founded.

CA-00053417-002

I find that the complaint is not well founded.