Complainant

Respondent

Anonymised Parties

An engineer

A Technology Company

Representatives

Self-represented 

MP Guinness BL instructed by Julie Galbraith Eversheds Sutherland

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062691-001

09/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062691-002

09/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065118-001

31/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065118-002

31/07/2024

The Complainant commenced his employment with the Respondent on 25 February 2013. His employment terminated on 14 June 2024.

On 9 April 2024, the Complainant referred two complaints to the Director General of the WRC pursuant to the Employment Equality Acts alleging that he was discriminated against by the Respondent in conditions of employment by reason of his disability and that he was harassed by the Respondent by reason of his disability. The most recent date of discrimination was stated as 21 February 2024.

On 31 July 2024, the Complainant referred two further complaints to the Director General of the WRC pursuant to the Employment Equality Acts alleging that he was discriminated against by the Respondent by reason of his disability in conditions of employment and that he was harassed by the Respondent by reason of his disability. The most recent dates of discrimination were stated as 19 and 20 July 2024.

The Respondent rejects the claims.

The Complainant referred these claims to the Director General of the WRC on 9 April 2024.

In the complaint form, the Complainant alleged that his complaint related to the cumulative impact of multiple HR cases which he logged with the Respondent between March 2023 and February 2024. The cases related to the alleged failure of the Respondent to maintain accurate pay, tax, pension, holiday, allowance and benefit records for the Complainant and the resulting impacts on him, an employee with a recognised disability whilst he was receiving treatment, recovering and upon his return to work. Given that there were no such issues in the Complainant’s 11 previous years as an able employee of the Respondent, he concluded that the failure of the Respondent to maintain those records correctly for him once he became ill to be inconsistent with how comparable records are maintained for able employees.

The HR cases the Complainant logged with the Respondent covered a wide range of statutory requirements including pay (2), pension (3), taxation (2), holiday (2), benefit (1), and allowance (3). The cases filed include two grievances which were heard by the Respondent. The cases were opened between February 2023 and March 2024 and related to issues occurring in the period between July 2022 and March 2024. All of the cases have been investigated and resolved to the Complainant’s satisfaction; aside from the second grievance in which only one of two points which the Complainant raised was partially upheld.

The Complainant asserted that the number, the nature, the time taken (average of 49 days per case; with the longest taking over 200 days to resolve) and the effort required on his part to resolve these largely avoidable HR issues has proven to be an unnecessary distraction to his post illness treatment, to his recovery and to his return to work. These cases and the efforts to have them resolved have been a frequent source of stress and upset. The cases proved to be an unwelcome drain on what were his already overstretched physical and mental resources.

The Complainant stated in his complaint form that as a result of filing the HR cases with the Respondent, he eventually got the benefits which he was entitled to from the Respondent, but unfortunately, he had to do a lot of work and expend a lot of energy to get what were basic entitlements.

The Complainant asserted that the work and the effort involved to get his entitlements shouldn't have been necessary for someone with his particular medical circumstances. He suspects that no able employee of the Respondent has ever been required to do anything comparable to get their statutory entitlements. The work and effort required of him was due in part to the Respondent's inability or reluctance to meet his contractual entitlements and in part due to the Respondent’s management of his pay and conditions under the auspices of the Respondent’s long term illness policy. There were also issues which were caused by the failure of the Respondent to implement some of the agreed resolutions to some of the original cases the Complainant filed in the correct manner and by the failure of the Respondent to process some of said agreed resolutions in a manner consistent with statutory regulations thus resulting in the Complainant needing to open additional cases to have those subsequent failings addressed.

The Complainant hoped that his case is an isolated instance, but he had concerns about colleagues who have gone through, are going through or are soon to go through similar medical difficulties as him, as some of them may not be in a position to have the strength, the will or the ability to get their entitlements.

The Complainant submitted that he received assurances in August 2023 from the grievance team which heard his first grievance that the relevant processes would be improved. However, the fact that agreed resolutions weren't implemented correctly and that he needed to file additional cases leaves him some doubt that the assurances provided in good faith by that grievance team have been honoured.

The Complainant submitted that he received similar assurances in the outcome letter for the second grievance that processes improvements would be made.

The Complainant hoped  that  this complaint, if upheld, will provide the necessary impetus to the Respondent to ensure that it maintain accurate records for any employees with a disability in a manner which is consistent with how comparable records are presumably maintained for able employees thus ensure that employees with disabilities are treated as required under the relevant acts and that no employee in the future has a similar experience to his.

The Complainant submitted that the Respondent acknowledged the stress and distress caused to him by its failures in a number of cases, including the outcome letter regarding the Complainant’s grievance alleging harassment. The Complainant submits that, while the Respondent acknowledged that the Complainant’s experience regarding the issue raised was poor, it concluded that it did not constitute harassment.

The Complainant submits that, while being on medical leave and during his return to work, he experienced what he could best describe as regular harassment resulting from the Respondent’s inability to manage and maintain the necessary employment records. The Complainant asserted that this harassment has been exacerbated by the Respondent’s failure to address some of the resulting issues raised in a timely manner and by the Respondent’s failure to implement resolutions proposed in the agreed and the correct manner for some of the original issues. This failure not only created uncertainty for the Complainant and his family at what was a very difficult time but also resulted in significant emotional distress for him. This unwanted conduct on the part of the Respondent and the effort the Complainant had to expend to correct it, given his medical circumstances, in the Complainant’s opinion, violated his dignity and at time created and intimidating and hostile environment for him thus constitutes harassment under the Acts.

Summary of the Complainant’s written submission

In his written submission, the Complainant submits that he encountered numerous issues as a result of the actions and/or inactions of the Respondent. These were actions which he contends constituted harassment and which, he contends, were in some cases discriminatory in nature which occurred at across a prolonged period of time including while he was on medical leave, on long term illness, preparing to return to work, back to work on a phased basis, back to work full time, in the process of being made redundant, and after being made redundant. The vast majority of the actions at the heart of these complaints occurred whilst he was an employee of the Respondent prior to being made redundant in June 2024.

The Complainant started his employment with the Respondent in February 2013. He had a very successful career with the Respondent up to getting cancer (subsequently confirmed as High-Grade Non-Hodgkin’s Burkitt's Lymphoma) in May 2022.

Currently, the Complainant is in the chronic phase of his illness since January 2023. He endured a prolonged and at times difficult recovery which is still ongoing due to the long-term effects of his disease and his treatment.

The Complainant submits that in February 2023 the Revenue made a tax demand on him. The tax demand was made as a result of an error made by the Respondent in processing his social welfare payment whilst he was on sick leave.

The Complainant submits that over the next 18 months he encountered over 20 additional financial issues of varying amounts at various times as a result of errors made by the Respondent.

The Complainant submits that he advocated for his entitlements via the internal dispute mechanisms available to him and eventually had approximately €47,400 due to him for various pay, pension, taxation, holiday and allowance issues which occurred between February 2023 and August 2024 reimbursed. The Respondent acknowledged its errors, apologised for the errors and any stress caused and promised process improvements.

The Complainant submits that he was approved to return to work by both his medical team and by Occupational Health (OCH). OCH approved his return to work subject to a number of accommodations and returned to work on a phased basis in October 2023 and returned to work full-time in January 2024. The Complainant submits that, on returning to work he was not re-integrated to the organisation he worked for prior to getting ill and was all but excluded from the work of his team.

The Complainant submits that, having exhausted the internal dispute mechanisms available to him to advocate for his entitlements and endured what for him had become a hostile work environment by that point, he filed two complaints with the WRC: CA-00062691-001 and CA-00062691-002 alleging harassment and discrimination.

The Complainant submits that shortly after completing 26 weeks back at work, just prior to a 7th OCH review which had been requested by the Respondent and just after leaving the protections of the long-term illness program, he was informed that he was at risk of redundancy. He was made redundant in June 2024. The Complainant accepted a gratuity from the Respondent and signed a waiver waiving his rights to take any actions under various acts listed in the waiver against the Respondent. The waiver excluded complaints CA-00062691-001 and CA-00062691-002 as they were filed before the Complainant was informed that he was at risk of redundancy.

The Complainant submits that he unsuccessfully appealed his redundancy on a number of grounds. The Complainant submits that following his redundancy, the Respondent made a number of errors in fulfilling the terms of his redundancy agreement. Upon discovering the post redundancy errors, the Complainant filed two additional complaints with the WRC (CA-00065118-001 and CA-00065118-002). There are still a number of relatively straightforward but long-standing HR matters unresolved. These relate to how the Complainant’s PILON was calculated, the tax treatment of the Cycle to Work scheme and a refund due of the stamp duty on his corporate credit card. In total the sum which is still due to the Complainant comes to approximately €2,000.

The Complainant submits that there are two main threads to the complaints which occurred predominantly whilst the Complainant was an employee of the Respondent:

 1. Harassment which occurred directly as a result of him developing a disability and which had the effect of creating a hostile work environment for him.

2. Discrimination which resulted from the treatment he received from the Respondent as an employee preparing for and returning to work with a disability.

The Complainant submits that he is in remission from High Grade Non-Hodgkin’s Burkitt's Lymphoma (May 2022). He was previously diagnosed with Thyroid Cancer (July 2020). The treatment for and the management of the two cancers are further complicated by an underlying condition of Hereditary Hemochromatosis.

The Complainant was passed fit for work by the medical team who treated his lymphoma and following multiple occupation health reviews in late 2023. Prior to being made redundant by the Respondent on 14 June 2024, the Complainant went back to work on a phased return to work (PRW) program on 2 October 2023. Following the PRW he returned to work full-time from 1 February 2024. The Complainant worked full-time up to his redundancy on 14 June 2024.

The Complainant submits that the issues which are the basis for the complaints to the WRC don’t relate to the terms of the Complainant’s contract or the terms of the long-term illness policy. Instead, they relate to problems arising from the Respondent’s operation of the associated policies and processes. Specifically, the complaints relate to the financial harassment he experienced as a result of those failures and errors.

Harassment & Discrimination

The Complainant submits that the LTI program offered by the Respondent is excellent and provided a lot of comfort to him and his family during his illness. The vast majority of the issues the Complainant encountered were not due to the structure of the LTI program itself but rather as a result of the interpretation and operation of the LTI program by the Respondent, and the failure to promptly resolve and in some cases correctly resolve the HR cases the Complainant opened as a result. The Complainant expressed appreciation for the support provided to him by the primary HR representatives who supported him during his illness, recovery and phased return to work.

The Complainant submits that he experienced a lot of financial distress due to the Respondent’s actions. The financial distress resulted from harassment over a prolonged period from the Respondent arising from errors made with tax, social welfare, pay, pensions, holidays, allowances during his sick leave, his return to work, his eventual redundancy and even after his redundancy.

The timeline for the harassment was:

·         9 February 2023 - Revenue made a tax demand

·         21 April 2024 - monthly pay finally correct after errors in the months after he returned to work.

·         May 2024 - financial issues continued in the calculation of the Complainant’s redundancy payments.

The Complainant submits that he tried to resolve any LTI issues (March to May 2022) informally with the support from HR. That proved unsuccessful and he proceeded to open HR Connect cases. He then filed a number of additional HR Connect cases regarding his issues with pay, pension, PAYE, holiday, benefits, allowances. The Complainant also opened two grievances due to issues arising from the financial issues he experienced: one in 2023 in relation to the delay in addressing the original taxation issue and a failure to pay a contracted working from home allowance due. He subsequently expanded this grievance to have a number of pension issues dealt with. The Complainant’s grievance was upheld and resolutions were proposed.

The Complainant submits that he had concerns that some of his colleagues may have encountered similar issues, so he enquired under the auspices of the Respondent’s whistleblowing policy as to the appropriateness of filing a protected disclosure. He did not proceed with a protected disclosure at that time. The Complainant filed a complaint to the WRC in relation to his tax, allowance and pension issues. He withdrew those complaints to allow the grievance process to proceed unhindered.

The Complainant submits that he filed a second grievance in 2024 in relation to the harassment endured due to the sheer volume, scale and the prolonged duration of the financial issues encountered creating a hostile environment.

The Complainant submits that all the HR Connect cases, apart from the harassment grievance, were upheld, with any and all monies due to him eventually paid to him. His appeal of the failure to acknowledge that he was harassed by the panel who heard his harassment grievance was rejected.

Cases opened included the following:

·         March 2023 – incorrect tax demand from the Revenue

·         May 2023 – working from home allowance

·         June 2023 - grievance regarding allowance due and failure to resolve tax demand

·         July 2023 - replacement case regarding the first case opened to allow the Complainant to communicate directly with the team working the case

·         July 2023 - pension contributions stopped on entry to LTI

·         July 2023 - Employer not paying employee pension contributions during LTI

·         October 2023 - allowance due incorrectly paid as PAYE rather than as tax free allowance as it should have been, resulting in tax demand

·         October 2023 - incorrect pay on return to work

·         October 2023 - pension payments due as settlement of earlier HR case not paid

·         October 2023 - holiday balance not set correctly on return to work

·         January 2024 - query regarding when benefits reset from RTW

·         January 2024 - 19.5 holidays due not correctly carried forward from 2023 to 2024

·         February 2024 - overpaid in February, money due for underpayment of pay in October paid twice, once in January and again in February

The Complainant submits that the above cases were opened to address issues including the 12 payroll and LTI related issues resulting in a gross loss to him of over €35,000 prior to his redundancy. Any associated taxes due on that amount, presumably would also not have been paid to Revenue.

The Complainant submits that the Respondent claimed that he wasn’t harassed as he wasn’t specifically targeted by any individual and as there was no intent on the company’s part to harass.

The Complainant submits that lack of targeting by an individual is not required as vicarious liability applies where an employer can be held liable for the actions of all its employees that occur within the scope of their employment.

Furthermore, the Complainant submits that lack of intent is also not required. Harassment is defined in section 14A(7) of the Employment Equality Act as “any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. In the context of this complaint, given the severe “effect” the harassment had on him, the Complainant contends that intent is not required for harassment to have taken place in this case, as the actions of the Respondent had the effect of causing harassment.

The Complainant submits that the appeal of his grievance regarding the alleged harassment was rejected for similar reasons to those of the panel which heard the original grievance. One additional point of note being that the appeal panel contended in the outcome letter that no discrimination occurred as the Respondent regularly makes similar payroll mistakes outside the LTI process for able people. The Respondent further contended that a certain number of errors are to be expected given the large volume of payroll transactions they process annually.

The Complainant submits that the vast majority of the payroll and pension issues outlined in the timeline above were acknowledged as errors by the Respondent. However, it was only after the Complainant noticed and reported them, and after the Respondent investigated them that the errors were eventually corrected. The only point of contention at this juncture is whether any or all of the actions outlined in the timeline above under the relevant acts were discriminatory or constituted harassment.

The Complainant submits that whilst harassment can cause stress, it doesn’t follow that stress infers harassment. The Complainant submits that the Respondent has admitted to and apologised to him on multiple occasions for causing him stress.

The Complainant submits that harassment involves deliberate or repeated behaviours with the intent or effect of creating a hostile or offensive environment, such as verbal abuse, unwanted actions or advances, or discriminatory actions. On the other hand, stress can result from various factors, including work demands, interpersonal conflicts, or organisational culture, without necessarily involving harassment. While stress can exacerbate tensions and potentially lead to inappropriate behaviour in some cases, it doesn't inherently involve the intent to harm or intimidate others or have the effect of harming or intimidating others, which is characteristic of harassment.

The Complainant submits that while harassment can contribute to stress, stress alone doesn't infer harassment. Harassment involves specific behaviours that go beyond the general experience of stress in the workplace. Determining whether an employee has suffered from stress or harassment can involve various factors and typically relies on a combination of subjective and objective assessments.

The Complainant submits that it is clear that the Respondent’s repeated failure to adhere to its Long-Term Illness (LTI) policy, resulted in mental, physical and financial stress for him, an employee with a recognised disability due to numerous issues with pay, pensions, benefits, etc. and that the associated harassment he suffered was further exacerbated by the Respondent failing to accommodate him on his return to work, then potentially targeting him for redundancy as a result and finally failing to process his redundancy payment correctly and fairly.

The Complainant submits that, despite apologies, the actions of the Respondent’s agents constituted harassment and that vicarious liability applies.

The Complainant submits that the volume of errors, the time at which they occurred during his recovery and return to work, the significant financial amounts involved, the volume of correspondence required to bring those issues to a conclusion, the excessive amount of time he had to spend to deal with the issues, the implied use of an undisclosed process, coupled with the Respondent’s repeated failures to address his justifiable complaints in a timely manner contributed to a hostile work environment for the Complainant.

The Complainant submits that his complaint of harassment on these grounds is well founded and supported by the evidence presented and thus that he has met the burden of establishing a prima facie case of harassment, and a prima facie case of discrimination as that harassment arose as a result of him developing a disability.

The Complainant submits that prior to becoming ill, he had a stellar career with the Respondent. In the context of this complaint, he did nothing wrong. To resolve these issues, it necessitated him filing over 20 pay, pension, holiday, taxation and allowance HR cases. The Complainant submits that it shouldn’t have been and shouldn’t continue to be so hard. It shouldn’t have required so much effort on his part and required so much of his time during his recovery to get what he was entitled to from the Respondent. The actions of the Respondent should not have been allowed to impact on his recovery to the extent that they did.

The Complainant submits that he established a prima facie case that he was harassed by the Respondent and that the harassment resulted from his disability, thus he has also established a prima facie case that he was discriminated against by the Respondent. On that basis the burden should now shift to the Respondent to prove otherwise.

The Complainant submits that he is not special hence he strongly suspects that his experiences are not unique.

Redress sought

The Complainant is seeking the following:

·         the maximum compensation allowable under the Acts;

·         an order for compensation in lieu of reengagement;

·         a settlement of any and all, long standing HR issues;

·         The Complainant has no doubt that he has colleagues who have had or might have similar distressing experiences. Hence, he is seeking the following:

Ø  Policy changes: require the Respondent to work with their worker’s councils to implement or update workplace policies to address and prevent discrimination and harassment.

Ø  Training programs: the Respondent has access to good DEI training courses. What is needed is a means to ensure that the Respondent works with its worker’s councils to implement an impactful training program for employees and management on equality, diversity, and harassment prevention to promote a respectful and inclusive workplace culture.

Ø  Formal apology: instruct the Respondent to issue a formal apology to the Complainant, from a grade with the authority to rectify the issues at the heart of these complaints, acknowledging their wrongful behaviour and its impact on his mental, physical and financial health during his recovery.

Ø  Audit: order the Respondent to conduct an audit with the aim of identifying other employees similarly affected by pay, pension etc. issues whilst on LTI with a view to ensuring those employees or their estates are fully reimbursed for whatever may be due to them.

Ø  Monitoring and reporting: require the Respondent to work with its worker’s council to implement monitoring and reporting mechanisms to ensure compliance with anti-discrimination and harassment policies and to demonstrate ongoing commitment to a fair workplace.

Ø  Inspectorate Services: refer the Respondent to the WRC inspectorate service and /or the appropriate statutory bodies so they can consider if an audit is required to ensure that the Respondent is fully meeting its statutory requirements to maintain accurate pay, pension, tax, social welfare, holiday and allowance records for employees and that all due taxes have been paid under the relevant Acts including the Payment of Wages Act, the Pensions Act, the Taxes Consolidation Act and the Organisation of Working Time Act.

Additional claims

In his written submission and oral evidence, the Complainant raised a number of additional matters that were not the subject of his initial complaint to the WRC dated 9 April 2024 such as alleged shortcomings of the redundancy process, financial issues with regard to the termination of his employment and alleged failure to provide him with reasonable accommodation. The matter of additional claims and the compromise agreement is dealt with below in CA-00065118.

Summary of direct evidence and cross-examination of the Complainant

At the adjudication hearing, the Complainant said that issues started when he commenced his long-term illness absence (LTI) in November 2022. He said that once it was brough to the Respondent’s attention, the Respondent apologised, refunded what was due to him and promised improvements. The Complainant said that had he died, his family would not be able to find out about these errors.

The Complainant said that the Respondent’s policies were good, the people were brilliant, but the psychological impact of the errors made was serious.  

The Complainant said that up to the point when he became ill, he had never had any issues with payroll. He said that during the first months of his illness he was terrified that he would do something in violation of the policy, so he contacted a named employee of the Respondent, Ms A, who was brilliant to help him through the steps. He said that there were errors made in his payroll. While he can accept that those were errors, there was reluctance to admit and implement fixes.

The Complainant said that the subject of this claim are the errors made by the Respondent. The Complainant said that while he refers in his complaint form to the working from home allowance, this did not arise as an issue linked to his disability.

The Complainant said that the matter of “double taxation” that was brough to his attention by the Revenue Commissioners was discriminatory. He said that he had to sign a form for the Department of Social Protection to allow for his benefit to be paid directly to the Respondent. In February 2023 he received an email from the Revenue Commissioners but ignored it. He then opened it in March 2023. It transpired that it was a tax demand. He corresponded with the Revenue for a couple of weeks. The Complainant brought it to the attention of the Respondent in March 2023. The Respondent accepted that there was an error and sorted it out with the Revenue. It was resolved by October 2023.

The Complainant said that he filed a grievance as he was not getting proper engagement from the Respondent. It took 202 days to have it resolved.

The second matter relates to the Complainant’s pension. He said that when he transitioned to LTI, he elected to continue with his pension contributions. However, he realised that no pension contributions were made. The Complainant said that he brought it to the Respondent’s attention in January/February 2023. The Complainant said that the matter was resolved in July 2023. He received an apology from the Respondent and the contributions were rectified and improvements were promised.

The Complainant said that he returned to work on phased basis. He was paid for the hours he worked, the insurance paid 66% of the balance, and he used up his annual leave as the remainder. However, in October 2023, he was only paid 66% of his wages, his pension contributions were not paid, and his holiday balance was incorrect. The Complainant said that he filed three cases relating to his pay, pension contributions and annual leave balance. These were resolved some 5-6 weeks later.

The Complainant said that in January 2024, his annual leave “disappeared”. He brought it to the Respondent’s attention. It was accepted and resolved.

The Complainant said that the outstanding wage from October 2023, was paid to him in January 2024 (133%). Then he was overpaid in February 2024, as the Respondent again paid him 133% of his wages. In March 2024, the 33% was taken back to rectify the error.

The Complainant said that he had no idea what he was paid there was such a mess made with his wages. He constantly had to advocate for himself.  And it was only because of his sickness.

The Complainant said that no issues arose from March to April 2024.

In cross-examination, the Complainant agreed that the Respondent had no knowledge of his disability at the time the matter of his working from home allowance arose. He said that by referring to it, he wanted to show the Respondent’s pattern of behaviour. He admitted that it is not correct that the only issues with payroll he had occurred because of his sickness. The Complainant agreed that he was underpaid and overpaid. He agreed that once he brought any issue to the Respondent’s attention, it was rectified.

It was put to the Complainant that, in his grievance, he only raised one matter, the issue of working from home allowance.

It was put to the Complainant that staff in the Payroll Department are based in India and had no way of knowing about his disability, they knew of LTI, but they had no way of knowing the details of the Complainant’s disability versus someone else’s illness.

The Complainant said that he had no desire to say that a particular person targeted him, he said that he did not know what training and support they have. He believed it was not personal but systematic. He said that he was not special, if it happened to him, it is possible that it could, did or would happen to other people in similar circumstances. The Complainant confirmed that his grievance was not regarding a personal matter, discrimination, but regarding a systemic failure. By systematic, he meant the Respondent, the corporate entity, the culture. The Complainant said that it would be extremely unlikely that a person in India would target him. However, he said that they knew about his disability and had duty of care.

The Complainant said that he encountered multiple errors. He said that he did not see any value in him complaining about a person in India. His difficulty was that the problems were not being resolved. He believed that someone should have stepped in.

The Complainant said that there were 120 payroll runs, there was 1 error with regard to working from home allowance, giving 0.083%. However, there were some 12 errors in 22 payroll runs when he was on LTI giving 54%.

The Complainant said that there were some 200-300 employees in the Irish operation of the Respondent and asserted that it was not a large number.  In response to the Respondent’s statement that there were some 7,000 in the payroll system, he said that he would still be an outlier in terms of the errors made.

The Complainant acknowledged that he had a generous LTI and other supports, but something went wrong and he believed it was harassment as a result of him developing an illness. The Respondent’s attitude was: if you notice something, bring it to our attention and we will fix it. This had severe psychological impact on the Complainant and caused him significant stress.

The Complainant said that he did not think anyone was targeting him, but the collective environment was hostile, things were broken but it was not personal. There still is no guarantee that the next person would not be treated the same.

The Complainant was employed as a developer/engineer and joined the Respondent in 2013.

The Respondent has a wide range of policies in line with its obligations as an employer such as the anti-harassment and bullying policy, grievance policy and the long-term illness policy.

In May 2022, the Complainant received a cancer diagnosis and he commenced a long-term illness.

On 30 March 2023, the Complainant notified the Respondent of a tax demand from Revenue. Ms A logged a ticket with payroll on behalf of the Complainant. On 5 April 2023, the Complainant logged a ticket with payroll on the same issue for visibility. Correspondence between the Complainant and Respondent continued throughout May and June and the Complainant raised a grievance on 20 June 2023. The grievance centred around a contractual payment - namely a working from home allowance which had not been paid since November 2013. By a letter dated 11 July 2023, Mr S, the Senior Manager Service Delivery invited the Complainant to a meeting via Teams. The grievance meeting was held on 19 July 2023 and a grievance outcome letter issued on 17 August 2023. The grievance outcome letter set out the following findings as follows:

“It is clear from reviewing your employment contract that you had a contractual entitlement when you joined [the Respondent] in February 2013. I have been unable to identify if in fact you were entitled to the allowance in the first place and believed that this could have been a possible error in your original contract based on standard practices and on review of other employees and terms of eligibility for homeworking allowances. I have seen evidence that the allowance was stopped in November 2013 but I have been unable to identify the specific reason for the allowance ceasing, nor have I been able to determine if you are formally notified of this change.  I do believe there is some responsibility with you to have reported this change in 2013 or soon after, rather than ten years later, but equally appreciate it is entirely possible you may not have noticed the allowance stopping due to the monthly value. I believe that given the circumstances, it would be fair to recommence the allowance at the next available pay run, which is likely to be September 2023. With regards to backdated payments, I can arrange a once-off payment of €3,960 to compensate for the missing allowance payments. I will arrange for this to be paid to you at the next available opportunity.

I can confirm that I have had confirmation from the payroll team that the tax error has now been resolved. The correct numbers have been reported and the Irish Revenue have been informed of this correction. I understand that [named] will confirm this correction to you directly as I am aware you have been in contact with [named] throughout your efforts to resolve this issue yourself.

I can confirm that missing pension contributions have been identified by the payroll team and they have confirmed that this error will be corrected in the August pay run. My understanding is that the missing contributions that you will receive cover November 2022 to July 2023 and that contributions will continue going forward, in line with the LTI policy. In relation to points 2 and 3 I would like to take this opportunity to extend my sincere apologies for the errors and stress that have been caused as a result of this incident. Your wellbeing is of the utmost importance, and I deeply regret any inconvenience or distress this situation may have caused. In conclusion, I uphold your grievance and I recommend the following actions to be taken:

[redacted] payroll will arrange for the lump sum payment and recommencement of your home working allowance as per point 1 in my findings above.

In relation to points 2 and 3, since becoming aware of the situation, I would like to reassure you that immediate steps have been taken to prevent similar incidents from occurring in the future. The payroll and employee relations teams have been working diligently to implement corrective measures and process improvements to ensure that does not happen again.”

On 2 October 2023, the Complainant returned to work. There was correspondence between the Complainant and the Respondent regarding the implementation of the outcomes of the grievance and matters were resolved ultimately.

On 4 March 2024 the Complainant lodged a further grievance which related to the ‘cumulative impact of multiple HR connect case numbers which I have logged between March 2023 and February 2024’. Within the body of that grievance, the Complainant confirmed that all of the cases had been investigated and resolved to his satisfaction. He also confirmed that he believed ‘the underlying issues to be largely systemic in nature’. He stated that he had concerns about colleagues ‘who have gone, are going or are soon to go through similar difficulties to myself as some of them may not have the strength or the ability to get their entitlement’. The grievance expressed disappointment that a number of issues had occurred around the resolution of the grievance. The grievance states ‘to summarise, these cases to me indicate a systemic failure in the operation of the long-term illness policy by [the Respondent]. This unwanted conduct by [the Respondent] has been and continues to be in my opinion unfortunately a form of workplace harassment which at times of impacted my recovery’.

By letter dated 11 March 2024, Mr B, Senior Manager HR Strategy & Delivery invited the Complainant to a grievance meeting via Teams. The grievance meeting was held on 15 March 2024 and a grievance outcome letter issued on 4 April 2024.

The grievance outcome letter summarised the grievance as follows:

‘A failure in the practical operation of the long-term illness policy by [the Respondent] to perceived workplace harassment given the occurrence of issues related to pay, pension, taxation and benefits you experienced while on long-term sickness leave.

The findings in respect of the two points were dealt with as follows:

(1) I recognise that you were subject to numerous issues regarding your pay during and after your sickness absence and I would like to add my apologies for these errors along with others who have already apologised.

(2) I note that these issues were resolved for you personally and you acknowledged as such but stress that your grievance was not related to having had your personal matters resolved but was focussed on avoiding similar issues, arising for anyone experiencing a long-term sickness absence in the future.

(3) The errors that have arisen and led to your unfortunate experience have reasonably demonstrated that improvements can and should, in line with [the Respondent’s] values, be made to mitigate the risks of this happening again. To this end, I do partially uphold this element of your grievance and can confirm that as a result of the issues you experienced and which you noted, the HR team assisted you with in resolving, we are taking steps to update information provided to our payroll and shared services teams as well as taking appropriate action to improve our processes from the learning gained by those supporting you in resolving your unfortunate experience. I do not completely uphold your grievance in respect of this point as it is clear your HR colleagues acted in line with [the Respondent’s] values and in the spirit of the long-term illness policy in correcting errors that did arise so it is clear that some aspects in the practical operation of the policy were working effectively to support employees who are experiencing long-term sickness absence.

(4) On this basis, whilst no process is or will ever be perfect in the sense of a guarantee that no errors will ever occur, I am confident that the business has taken the appropriate steps to ensure it mitigates the risks of similar issues arising in the future for any employees who may experience long-term sickness absence point to perceived workplace harassment.

(5) Whilst I recognise that your experience in relation to these issues was poor and caused unnecessary stress and upset at the time, I have reasonably concluded that your experience would not constitute harassment under [the Respondent’s] policy.

(6) Harassment is clearly defined in our policy as ‘any form of unwanted physical, verbal or non-verbal conduct related to any of the discriminatory grounds being conduct which has the purpose or effect of violating someone’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for them. A copy of the anti-harassment and bullying policy is attached for your reference.

(7) There is no substantive evidence for me to reasonably conclude that the errors that arose were caused by conduct contrary to any [the Respondent’s] policy or any unreasonable standard of behaviour which might reasonably be considered or perceived as misconduct of any kind or related to any discriminatory grounds. Equally, there is no evidence to support the view that any errors which arose were undertaken with a view to harassing you. Your own evidence indicated that [the Respondent’s] HR colleagues had supported you when such errors were made to resolve the situation. For this reason, this element of your grievance is not upheld.

In conclusion, I partially upheld your grievance in respect of Point 1 for the reasons noted above and as a result, I will personally monitor the changes recommended following the review of your case to ensure that they are implemented as soon as is practically possible.’

The Complainant lodged an appeal, and an appeal hearing was held on 25 April 2024. In the appeal he questioned what he would be entitled to for the alleged harassment. An appeal outcome letter issued on 14 May 2024.

The findings were as follows:

1.       Perceived workplace harassment over a prolonged period while recovering from illness.

(i)                  Acknowledge the failures in the support you were provided by the [the Respondent’s] HR Shared Services Team when the errors occurred and the way these were managed. I appreciate that, given your illness at the time, these caused you a great deal if stress. I agreed with your point raised in the grievance meeting that the team should have provided a better level of support and prioritised your case and needs given your illness at the time.

(ii)                However, there is a distinct difference in having such an experience as a result of everyday interactions where mistakes are made, where things may go wrong, as opposed to circumstances amounting to harassment which is a clearly defined concept (hence the use of the specific legal definition within the relevant [the Respondent’s] bullying and harassment policy). In considering whether your experience could reasonably be categorised as harassment I consider the specific definition of harassment referenced within the [Respondent’s] policy and I considered the set of actions you complained about together with an evaluation of any likely motivation behind such actions and importantly whether such motivation was indicative of any intention to cause you an intimidating, hostile, degrading, humiliating or offensive environment.

(iii)               Although you felt the effect of what you perceived as harassment because of the occurrence of administrative errors and the poor customer service received from the HR Shared Services Team, I cannot reasonably agree with you that this amounts to harassment.

(iv)               The nature of the administrative errors that arose were errors in the processing of largely quantitative numerical typed data rather than qualitative narrative type date, hence data that is, by its very nature, impersonal and handled in volumes and quantities in which can be very difficult to distinguish between any specific individuals. Equally, the instances of a lack of immediate correction were also indicative of unintended process errors arising as opposed to any deliberate, planned or motivated action intended to cause the type of negative environment mentioned above. The fact that during the period complained about you were also engaging with other [the Respondent’s] colleagues who were working to address the issues you raised and correcting the administrative errors, show me that there was not any underlying intent to harass you or indeed create any hostile environmental.

2.       You believe you were discriminated against if you did not have issues with payroll before you got sick.

(i)                  In respect of whether any actions (or lack of) were on discriminatory grounds, I explored this with you. You outlined that as an ‘able bodied’ employee, you had never had any issues with payroll or pay but since being unwell and being a Cancer patient and therefore ‘disabled’ that you experienced errors and problems and therefore you believe this was discrimination.

(ii)                In taking an objective view on this, I am afraid I cannot reasonably agree that the absence of any administrative error being experienced by you when you were working means you were subsequently discriminated against while you were absent due to long-term sickness, due to such errors arising. I am aware that process and payroll errors do occur across other processes and are dependent on the individual circumstances of the employee but are not linked to whether an employee is able bodied or disabled. Given the quantitative and as noted above impersonal nature of the numerical data and the volumes being processed, the issue really is a process one around ensuring that the potential change in an individual’s circumstances is processed in a timely fashion in order to mitigate such errors arising. This could be more than just a change in circumstance due to sickness absence as it could equally apply to changes in circumstances for employees not absence from work, such as changes in working hours, promotions, changes to flexible benefits etc.

(iii)               Equally, it would be extremely unlikely with any system to be completely infallible given the size and scale of [the Respondent] in terms of employee numbers. I therefore do not believe that there was any discriminatory motives behind the errors and issues you experienced and there is no credible evidence to indicate on a balance of probabilities that this was the likely explanation for such errors.

3.       Reassurance that the policy and process improvements are being made.

(i)                  Regarding your concerns about the updates to the long-term sickness policy for Irish employees following your grievance, I have investigated this further and I can confirm that although the changes have not yet been made to the policy document, it has been reviewed with relevant legal advice from a process point of view and the policy changes will happen. It is important to note that when policy and process changes are made that there are stakeholder engagement processes that must be undertaken. All these factors need to be taken into account when determining the exact timing of any update of policy or process being published and implemented.

(ii)                I can confirm that process changes are being amended and education of the Absence and Payroll Team is taking place, learnings in your case and the changes made will not be visible to you or others until someone else goes through the process (and only then if the same issues went wrong). I am confident that the 8 local and off-shore teams are putting in place adequate measures to make improvements based on your experience for colleagues in the business.

(iii)               It is important to note that while such process changes will mitigate the possibility of such errors arising as much as reasonably practical, there will always be the statistical probability that it will not eliminate such errors arising (for the reasons I set out in point 1 above) irrespective of the sickness absence or otherwise of the employee. However, I am confident that the actions that are being taken will ensure if or when such errors arise and are experienced by individuals who are experiencing long term sickness absence, they will be given the necessary priority and support for such errors to be resolved swiftly.

(iv)               You asked if you were entitled to anything, from my understanding all financial payroll issues have been dealt with and there is nothing outstanding from a monetary perspective. Equally, I note that you also received an apology for your poor experience from the Company as part of the earlier grievance outcome. To this end, I am not aware of any further entitlement which would be appropriate to provide in the circumstances and given my findings above. The grievance was therefore not upheld as appeal.’

On 31 May 2024 the Complainant signed a Settlement Agreement arising out of the redundancy of his role. Following the termination of his employment there was correspondence between the Complainant and the Respondent at a time when he was no longer an employee arising out of the correct payments to be made regarding the redundancy payments.

THE LAW

It is well established that the Complainant must establish facts in the first instance from which discrimination can be inferred. The Respondent submits that the Complainant has not raised a prima facie case of discrimination and has not met the test set down by the Labour Court in its determination of Southern Health Board v Mitchell [2001] ELR 201. In that case, the Court set out the evidential burden which a complainant must discharge before it can accept that a prima facie case of discrimination has been established. The Court held that the complainant must:

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 if these 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 was no infringement of the principle of equal treatment.”

In the decision of the Labour Court in Anthony v Margetts (EDA038) the Court observed: ‘The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.

In the decision of the Labour Court in Arturs Valpeters v Melbury Developments Ltd, (EDA0917), the Court observed that there has to be “evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.”

In this case the fact that the Complainant has a disability is not sufficient to establish a claim of discrimination. It is accepted by the Respondent that administrative errors arose in the application of the illness policy. However, those errors were errors in the processing of largely quantitative numerical typed data rather than qualitative narrative type date, hence data that is, by its very nature, impersonal and handled in volumes and quantities in which it can be very difficult to distinguish between any specific individuals. It is submitted that it is clear that the policy was not applied to the Complainant in a less favourable way because he had a disability. Furthermore, it is denied that any such failures could amount to harassment.

At the hearing, the Respondent accepted that administrative errors such as the implementation of the LTI policy and working from home allowance were made. However, these were not due to the Complainant’s disability. The Respondent asserted that the Complainant gave detailed evidence on systematic failures of the LTI policy. The Respondent further submitted that the WFH allowance was withdrawn in 2013 prior to the Complainant being diagnosed with cancer.

It was submitted that the Payroll Department operates in India and deal with some 100,000 employees. There was nothing personal about the treatment of the Complainant, these were simply errors in the administration of the policy. The Complainant was treated the same as others with or without a disability. All the matters were resolved by the Respondent and apologies were given.

Ms Guinness BL, on behalf of the Respondent referred to Ruffley v Board of Management of St Anne’s School [2017] IESC 33 and noted that clumsy exercise of a policy is not a violation of one’s dignity. Ms Guinness noted that there was no witness to give evidence that the stress caused to the Complainant violated his dignity. Even the wrong exercise of the policy does not equal violation of dignity and harassment.

Ms Guinness BL further noted that there was nothing to show that errors made were linked to disability. The Complainant himself said that they were systematic. There was nothing to show that the policy was applied differently to other people.

Ms Guinness extended an apology to the Complainant on behalf of the Respondent. However, she denied strenuously that the errors were in any way linked to his disability.

Summary of direct evidence and cross-examination of Mr B, HR Director for the UK and Ireland

The witness, in his evidence accepted that errors were made in the administration of the policy. He said that the Payroll in India is provided with quantitative data but has no personal information of the staff.

The witness said that he has been working for the Respondent for some 17 years and, unfortunately, he encountered many errors as a consequence of large amount of data dealt with.

The witness confirmed that he dealt with the Complainant’s grievance of March 2024. He said that the Complainant did not believe that the issues were personal, however, he didn’t want others to have to deal with the same issues in the future.

The witness said that that it was a processing error. The Respondent apologised and he reiterated the apology at the hearing. However, it was in no way related to a disability, discrimination or harassment.

The witness said that the Respondent reviewed the policy and the processing. He said he would be confident that errors are unlikely to happen again.

In cross-examination, the witness said that he did not have the data on the cases of errors in the implementation of the LTI policy. He said that errors with peoples’ pay do happen. When staff circumstances change, errors can happen.

The witness said that the policy was reviewed, albeit he was not sure if the updated policy was live at the time of the hearing.

The Complainant put it to the witness that the payroll did have some qualitative data on the Complainant such as his name, employee ID; he said that once they picked the Complainant then the quantitative process starts. However, the initial action to define the parameters of the quantitative action is qualitative. The witness agreed that they would have the Complainant’s employee ID but no knowledge of his personal circumstances. He said that, ultimately, the Complainant is a number for the payroll purposes. The Complainant agreed with the witness that the HR would know that he was on LTI and pass that information to the payroll, but they would not know the reason.

On 9 April 2024, the Complainant referred a claim to the Director General of the WRC alleging that he was discriminated against in conditions of employment by reason of his disability. More specifically, the Complaint alleged that the Respondent failed to keep an accurate record of pay, tax, pension, holiday, allowance and benefit for the Complainant. The Complainant alleged that he logged cases with the HR department regarding his pay, pension, taxation, holiday, benefit, allowance. The Complainant alleged that the cases were logged between February 2023 and March 2024. They were investigated and largely resolved to his satisfaction. However, the cases and the efforts to have them resolved have been a frequent source of stress and upset.

The Complainant further alleged that stress and distress he suffered as a result of the multiple HR cases and the unwanted conduct on part of the Respondent violated his dignity and created an intimidating and hostile environment and thus constitutes harassment.

The most recent date of discrimination was stated as 21 February 2024.

The issue for decision is whether the Complainant was discriminated against and/ or harassed on the disability ground within the meaning of the Employment Equality Act 1998, as amended (‘the Act’). 

The Law

The definition of disability in Section 2(1) of the Acts is as follows:

“disability” means—

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

There was no dispute that the Complainant was a person with a disability at the relevant time. I find that the Complainant’s medical condition constitutes a disability within the meaning of Section 2(1) of the Acts.

Direct discrimination

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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)…..”.  

Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability".

The definition discrimination at Section 85A(4) of the Act provides as follows

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment...”

The definition of harassment is contained at Section 14A of the Act which provides: -

(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,

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.

(b) 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.

These provisions must be read in conjunction with Section 15 of the Act which fixes an employer with vicarious liability under the Acts for the wrongful acts of an employee committed during that employee’s employment. This section provides as follows: 

(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee —

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

Time limit

Section 77 provides as follows:

‘(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation 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 General or Circuit Court, as the case may be, 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.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.

(6A) For the purposes of this section—(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operated over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when a person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it.’

The time limits which govern the referral of complaints under the legislation are provided for in Section 77 of the Acts (as set out above). The WRC jurisdiction is confined to a period of six months prior to the date on which the claim was received, unless the discrimination in issue is part of a continuum of events.

Section 77(5) of the Acts deals with circumstances where there are a series of separate acts or omissions on the part of the employer which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum of discrimination.  To succeed in demonstrating a continuum, a complainant must demonstrate that there were acts of discrimination within a period of six months prior to the referral of their claim to the WRC which were sufficiently linked to the other alleged acts of discrimination.

Section 77(6A) addresses a single act extending over a period of time and so is treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant. (Employment Equality Law; Bolger, Bruton, Kimber; Round Hall, 2022 from section 16-97 onwards).

In its finding that the complainant had been discriminated against in the determination in Department of Health and Children v Gillen [2005] E.L.R. 141 the Labour Court held that, if the last alleged act of discrimination is within the time period specified in the Act, a Tribunal may take into consideration previous occasions of discrimination on the same ground.

Therefore, in accordance with the consistent approach applied by the Labour Court and the WRC in circumstances such as those that prevail in the instant case, I must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint before I can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within my jurisdiction. It is only in circumstances where such a conclusion was to be reached that I would have the jurisdiction to consider events which occurred prior to the cognisable period.

This complaint was referred to the Director General of the WRC on 9 April 2024 and, therefore, the cognisable period for this claim is from 10 October 2023 to 9 April 2024.

Burden of proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. 

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters EDA0917 where it held that Section 85A: 

"…. provides for the allocation of the probative burden in cases within its ambit. This 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 speculation 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.

The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v. Wineport Lakeshore Restaurant DEC-E2002-020 as follows: “It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

(i) that he is covered by the relevant discriminatory ground(s)

(ii) that he has been subjected to specific treatment and

(iii) that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

In deciding on this complaint, therefore, I must first consider whether the presumption of discrimination has been established by the Complainant. It is only where such a presumption has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

Comparator

Section 28 of the Acts in relevant parts provides that:

28. The comparators

(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities;

It is clear from section 6(2)(g) and section 28(1)(f) that the very first requirement for a complaint of discrimination to be established is that a complainant must show that a comparator without a disability or with a different disability was treated more favourably.

The Complainant in the within case did not name a comparator.

The Complainant referred this claim to the Director General of the WRC on 9 April 2024. Therefore, in line with the provisions of the Act, the cognisable period is from 10 October 2023 to 9 April 2024.

In his submission, the Complainant helpfully provided a table of the issues he raised with the Respondent. In the cognisable period, the following were raised:

1.       October 2023 - Allowance due incorrectly paid resulting in tax demand. The matter was resolved to the Complainant’s satisfaction within 21 days.

2.       October 2023 - incorrect pay on return to work. The matter was resolved to the Complainant’s satisfaction within 21 days.

3.       October 2023 - pension payments due as an outcome of previously raised HR case not paid. The matter was resolved to the Complainant’s satisfaction within 32 days.

4.       October 2023 - holiday balance not set correctly on return to work. The matter was resolved to the Complainant’s satisfaction within 39 days.

5.       January 2024 - query raised regarding benefits to be reset from return to work (RTW). The matter was resolved to the Complainant’s satisfaction within 13 days.

6.       January 2024 - 19.5 holidays due not correctly carried forward from 2023 to 2024. The matter was resolved to the Complainant’s satisfaction within 33 days.

7.       February 2024 - overpayment, money due for underpayment of pay in October 2023 was paid to the Complainant twice, once in January 2024 and again in February 2024. The matter was resolved to the Complainant’s satisfaction within 5 days.

Subsequently, on 4 March 2024, the Complainant raised a grievance related to the cumulative impact of multiple HR Connect cases which he logged between March 2023 and February 2024. I note that the Complainant comments in his grievance that “these cases to me indicate a systemic failure in the operation of the long-term illness policy” by the Respondent.

The Complainant was invited to a grievance meeting which was held on 15 March 2024 and received an outcome of his grievance on 4 April 2024. While I note that the Complainant appealed the outcome, both the appeal meeting and the appeal outcome fall outside the scope of the cognisable period for the purposes of this claim.

With regards to the allegation of discrimination, the combined effect of sections 6(1) and 6(2)(g) of the Employment Equality Acts is that discrimination on the grounds of disability shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation where one person is a person with a disability and the other either is not or is a person with a different disability. A comparator, actual or hypothetical, is an evidential tool, it is intended to contrast the treatment of the Complainant, in respect of the matter complained of, with that of another person in similar circumstance who does not have the protected characteristics relied upon.

The Complainant did not proffer any evidence to show that the treatment he was subjected to was less favourable than the treatment afforded to a comparator, actual or hypothetical, who does not have the characteristic relied upon.  In fact, the Complainant in his written submission and evidence, highlighted that the alleged failures are “systemic”. The Complainant emphasised that he believed that his experiences were not unique, and he believed that other employees of the Respondent could, did or would be treated in the same manner in similar circumstances. The Complainant made it clear that one the reasons to pursue his claim was to ensure that the Respondent improves its policies and practices so that no other employees are affected by the alleged failures. It appears, therefore, that the Complainant, on his own evidence was of the belief that other employees could have been and, indeed, were treated by the Respondent in the same manner. The Complainant, by his own admission had no doubt that he has former colleagues who have had or who are about to have similar distressing financial experiences.

I accept that the errors the Complainant faced at a very difficult time for him were unacceptable. However, it appears that they resulted from a change in the Complainant’s circumstances, which in turn required adjustments in the processing of his payroll, pension and HR records. While it is far from ideal, I accept the Respondent’s assertion that the errors that occurred were not unique to the Complainant and could equally arise in variety of other scenarios and as a result of changes in circumstances other than illness e.g. role change, promotion, changes in working hours, other long-term absence such as maternity leave. The Respondent recognised the errors and acknowledged that improvements were required. The Respondent undertook a review of its procedures and processes, including the administration of the LTI policy.

Having regard to the foregoing, I find that I was given no basis to conclude that the alleged failings of the Respondent amounted to unlawful discrimination within the meaning of the Acts during the cognisable period for the within complaint. 

There was no evidence put before me of the Complainant being treated less favourably by the Respondent on the grounds of his disability and to support a claim of direct discrimination on the grounds of the Complainant’s disability. Accordingly, I find that the Complainant has failed to discharge the burden resting upon him to establish facts from which it might be inferred that he may have been subject to unlawful discrimination.

With regards to the alleged harassment, the Complainant relies on the same sets of facts in support of his claim. In summary, the Complainant asserted that the stress and upset caused by the multiple HR cases and the failures of the Respondent violated his dignity and created an intimidating and hostile environment and, therefore, constitute harassment.

The definition of harassment is very wide. It can include any form of unwanted conduct which is related to any of the discriminatory grounds. The conduct constituting harassment must have the “purpose or effect” of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The conduct need not be intended to harass the victim. It is sufficient if it has that effect.

For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a link between the alleged treatment and the discriminatory ground.

In this regard, I am required to consider two aspects of the evidence, namely:

(a)    Whether the Complainant has established on the balance of probabilities that he was harassed in terms of the incidents he described in his submission and evidence. This includes an evaluation as to whether the events the Complainant describes took place, and if so, were of sufficient significance to establish a prima facie case of harassment.

(b)    If the answer to the question in (a) above is in the affirmative, did the Respondent take reasonable action to prevent the harassment occurring in the workplace. This includes considering the extent to which the Respondent was aware of the Complainant’s experiences, to enable it to deal with the Complainant’s complaint of harassment, and if it was aware whether it took appropriate action to enable it to rely upon the defence in Section 14(A)(2) of the Acts.

I have carefully considered the nature of the incidents of harassment which the Complainant claims he was subjected to. I do not accept that the “systemic failure in the operation of the long-term illness policy” by the Respondent (as per the Complainant’s grievance with regard to the alleged harassment) constitutes harassment within the meaning of the Acts. I accept the Respondent’s assertion that, while it is regrettable, payroll errors do occur and a change of an employee’s circumstances which necessitates payroll adjustment can potentially lead to an error of this nature.

Having regard to the evidence adduced, I am satisfied that the Complainant has not presented any evidence from which I could reasonably conclude that he was subjected to harassment on the ground of his disability contrary to Section 14A of the Acts. 

CA-00062691-001

I declare this complaint to be not well founded.

CA-00062691-002

I declare this complaint to be not well founded.

The Respondent raised a preliminary matter of a settlement agreement entered into by the Complainant on 31 May 2024. The Respondent asserted that the Complainant compromised his complaints howsoever arising out of the work relationship between himself and the Respondent other than the complaints that had been previously referred to the WRC, namely CA-00062691-001 and CA-00062691-002.

The Respondent asserted that the settlement agreement encompassed the complaints bearing reference numbers CA-00065118-001 and CA-00065118-002 referred to the WRC on 31 July 2024 and therefore the WRC did not jurisdiction to hear these complaints.

In Brothers of Charity (Roscommon) Ltd. v Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the Court’s determination in the case The Court Service and 28 Complainants EDA0719which considered thejudgments of Kenny J. in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242 and Hardiman J. in B.T.F. v. Director of Public Prosecutions [2005] 2 I.L.R.M. 367. In the latter case Hardiman J, found:

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue.”

In Donegal Meat Processors v. Gillespie t/a Foyle Donegal UDD2114 the Labour Court noted that, seeking for the substantive issue and the jurisdictional issue to be dealt with together was:

“akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. […] Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”.

Following the caselaw outlined above I find that there is a “strong case” for determining this matter by way of preliminary decision.

The Respondent submits that by Settlement Agreement dated 31 May 2024 the Complainant entered into a Settlement Agreement following his role being made redundant. The Complainant confirmed that he had the opportunity of obtaining independent legal advice regarding the contents and the effect of the agreement.

Clause 1.4 provided ‘payment to me by the Company of the sums specified at paragraph 1.1 shall be in full and final settlement, release and discharge of any and all actions or causes of actions, claims, contracts, liabilities and agreements (if any) as I may have against the Company and/or any associated undertaking, their employees, officers, shareholders and agents, whether arising under statute, common law, equity or otherwise arising out of my employment and or the termination of such employment by reason of redundancy. For the avoidance of doubt, this shall not apply in respect of WRC Complaint Reference CA00062691.”

It is submitted that the complaint lodged on 31 July 2024 relates to matters that arose because of the termination of the Complainant’s employment by reason of redundancy. As such, the Complainant is estopped from litigating these matters and the only matters before the Adjudication Officer are those under complaint reference CA-00062691.

Without prejudice to the above, the matters which the Complainant complains about in his second complaint arose when he was no longer an employee of the Respondent and therefore his complaint cannot be brought under the Employment Equality Act, 1998.

The Respondent disagreed with the Complainant’s assertion that the Respondent “did not honour the waiver”. It was noted that should that be the case, it was open to the Complainant to pursue the matter through appropriate avenues but he was prohibited from pursuing a WRC claim.

The Respondent acknowledged that there was an error in payments that were made to the Complainant. However, this error was rectified.

The Complainant submits that he was told that his role was at risk of redundancy. A consultation period followed in April/May 2024 and a settlement offer was put on the table.

The Complainant confirmed that a generous payment towards legal advice was offered and that he did obtain legal advice prior to the signing of the settlement agreement. The Complainant further stated that the Respondent was very helpful and accommodated any changes that his advisor proposed.

The Complainant accepted that on foot of the settlement agreement he was precluded from bringing a new claim to the WRC.

The Complainant submits that initially some monies were not paid to him (PILON and contribution to his legal fees). However, the Respondent acknowledged the error, and all what was due was paid to him. The Complainant submits that when preparing for the WRC case, he realised that there still might be some money owed to him. He asserted that since his redundancy, he encountered further harassment due to what he considers to be ongoing discriminatory treatment resulting from numerous payroll errors arising from the Respondent’s operation of their LTI policy.

The issue that I must decide upon relates to the jurisdictional issue raised by the Respondent as to whether the Complainant has compromised his right to pursue his complaints of 31 July 2024 under the Employment Equality Act, 1998 (as amended) because of the settlement agreement which he signed on 12 June 2024.

I note that the settlement agreement includes provisions within which the Complainant agreed to waive his right to initiate any future claims against the Respondent, including any claims under the Employment Equality Act, 1998 (as amended). The Complainant does not dispute that he signed the settlement agreement on 12 June 2024 and that he availed of legal advice in so doing. The Complainant did not dispute that the Respondent contributed financially to the legal advice he obtained.

In considering this matter, I have considered the High Court judgment of Smyth J. in the case of Sunday Newspapers Limited v Stephen Kinsella & Luke Bradley [2008] 19 E.L.R. 53. This case concerned a severance agreement purporting to compromise entitlements under the Protection of Employees (Fixed-Term Work) Act, 2003. Smyth J. held that the question of whether statutory rights have been compromised is a matter for the proper construction of the agreement itself and that informed consent and appropriate advice is crucial if the compromise is to be upheld. The judgment went on to state that where an employee is being offered a severance package he or she is entitled to be advised of his or her entitlements under the employment protection legislation and any agreement should list the various applicable statutes or at least make it clear that the same has been considered by the employee.

Smith J. also endorsed the dicta of the Circuit Court in Donal Hurley v. the Royal Yacht Club [1997] E.L.R. 225 wherein Buckley J. set out the following principles in relation to settlement agreements: 

“I am satisfied that the applicant was entitled to be advised of his entitlements under the employment protection legislation and that any agreement or compromise should have listed the various Acts which were applicable, or at least made it clear that they had been taken into account by the employee. I am also satisfied that the applicant should have been advised in writing that he should take appropriate advice as to his rights, which presumably in this case, would have been legal advice. In the absence of such advice I find the agreement to be void.”

Further, in Starrus Eco Holdings Limited t/a Greenstar v Gerald O’Reilly UDD1868the Labour Court concluded that it did “not have jurisdiction to go behind the waiver agreement entered into by the Parties.”

In applying these principles to the instant case, I am satisfied firstly as a matter of construction, that the settlement agreement concluded between the parties was intended as full and final settlement of any and all actions and causes of actions, claim, contracts, liabilities and agreements (if any) as the Complainant may have against the Respondent whether arising under the statute, common law, equity or otherwise arising out of his employment and/or the termination of his employment with the exception of the Complainant’s WRC claims bearing reference number CA-00062691-001 and CA-00062691-002.

I have carefully examined the content of the settlement agreement, and I am satisfied that the provisions of the agreement state that the Complainant’s employment with the Respondent would terminate on 14 June 2024 and specifically preclude the Complainant from initiating any complaint against the Respondent under a wide array of stated employment enactments including Employment Equality Act, 1998 (as amended).

Furthermore, I am satisfied that the Complainant obtained legal advice in relation to the implications and effect of the settlement agreement and was financially facilitated in doing so by the Respondent, as part of the terms of the settlement agreement.

In his oral submissions, the Complainant confirmed that he signed the severance agreement with the full knowledge of the impact of the agreement on his legal rights. The Complainant also confirmed that he acknowledged that he understood the effect and the implications of the agreement. The Complainant further confirmed that he has signed the agreement with full understanding that, save for the WRC complaint CA-00062691-001 and CA-00062691-002, he was releasing and compromising any and all claims that he had or might have had against the Respondent arising from or connected with his employment with the Respondent and its termination.

The Complainant confirmed that he had obtained legal advice and understood the legal effect of the agreement. He received the Respondent’s contribution towards legal fees.

Having carefully considered the matter, I find that there was fully informed consent on the part of the Complainant and that he signed the settlement agreement with the benefit of informed consent.

Having regard to the foregoing, I find therefore that the settlement agreement as signed by the parties compromised any claims the Complainant has arising from his employment with the Respondent under the Employment Equality Act, 1998 (as amended). Accordingly, I find that I do not have jurisdiction to investigate the complaints referred to the Director General of the WRC on 31 July 2024 bearing reference numbers CA-00065118-001 and CA-00065118-002.

CA-00065118-001 and CA-00065118-002

I find that the settlement agreement dated 31 May 2024 and as signed by the Complainant on 12 June 2024 compromised any claims the Complainant has under the Employment Equality Act 1998 (as amended). Accordingly, I do not have jurisdiction to inquire into the complaints made by the Complainant under this enactment.

Discrimination- harassment – compromise agreement-