Complainant

Respondent

Parties

Harry  Phelan

Tusla- Child & Family Agency

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00064894-001

22/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00064894-002

22/07/2024

The Complainant commenced employment with the Respondent in May 2002.  He is a Freedom of Information Researcher for the Respondent and is based in Portlaoise. A complaint was lodged with the WRC on 22 July 2024. Neither party objected to the naming of the parties in this Decision.

In his complaint form the Complainant submits that he has mental health issues going back to his childhood. He has been hospitalised on a couple of occasions, the most recent being in 2023 when he was admitted to St Patrick’s Mental Health Services in Dublin. He was [at the time of hearing] still under the care of his consultant and his team in St Patrick’s. As part of his ongoing treatment, he is undergoing a 22-week day programme in the hospital, which he attends in person on Tuesday mornings. The programme runs from 10.00am to 1.00pm and he travels up and down on the day.

The Complainant submits that he has engaged in several day programmes with St Patrick’s over the years and he was always facilitated to attend these programmes by his Line Manager by being permitted to work the additional hours required for his programme and travel etc, by generally working an additional hour at the end of his working day to make up the hours he was away. He never sought any paid time off from the Respondent. However, the Complainant’s new Interim Line Manager (ILM) has refused his request to work the additional hours for the programme. Initially he was told that he would have to take these hours as unpaid leave or annual leave.  Some discussion took place between the Complainant and his ILM.  He was told he would be allowed work “flexi-time”, which would equate to seven hours per month but that any additional hours required would have to be taken as annual leave or unpaid leave. Despite pointing out that he had been facilitated before and worked all the hours to cover his attendance at the programme the Respondent did not change its stance on the matter.

The Complainant submits that he is being discriminated against on the disability ground as he is being forced to take annual leave or unpaid leave to attend his mental health programme, when there is no negative cost implication or organisational implications for the Respondent in granting his request.

The Complainant gave evidence on Affirmation at the hearing.

Mr Phelan stated that he did not believe appropriate measures had been put in place to facilitate him and that he had been discriminated against because of his disability. He stated that he was never afforded positive action despite the Respondent organisation having many guidelines for employees with disabilities.

In response to questions from me, Mr Phelan stated that he wanted a system whereby he be facilitated by TOIL so that he would not be disadvantaged financially or in losing annual leave.  He said the 2016 system where he did half and half worked, but with a new manager this system was not allowed.  He did not have a comparator.

In closing, Mr Phelan stated that there is a requirement in the Agency for a leave category to cover situations such as he in at present.

The Respondent provided a written submission.

The Respondent submits that management advised Mr Phelan that the Agency had no objection to him taking time from work to attend appointments [in St Patrick’s Hospital]. It was noted that where an employee must attend a medical appointment or the likes they normally do this through use of their annual leave. When Mr Phelan suggested he work up the hours he needed to attend the programme a compromise was proposed by management that he could accrue flexi time in line with the Midlands Interim Flexible Working Policy and the remained of the time required could be taken through annual leave or unpaid leave. The Respondent submits that Mr Phelan objected to this proposal and referred the matter to the WRC. Management tried to meet with Mr Phelan on the matter, but he refused. He has proceeded to attend the appointments and is advising management that he is working up the time.

Regarding the situation the Respondent submits that some concerns were raised about Mr Phelan working additional hours in a week and that it would be better if the time needed was taken as annual leave or unpaid leave.

The Respondent acknowledges that Mr Phelan has a disability. The Respondent believes it has offered reasonable accommodation to Mr Phelan in allowing him to be released to attend the programme in Dublin.

The Respondent attempted to resolve the impasse with Mr Phelan, but he refused saying the WRC would now look into the matter.

Ms Linda Walsh, Regional Manager, gave evidence on affirmation at the hearing.

In her evidence Ms Walsh stated the Respondent had no issue with Mr Phelan taking time off to attend the programme but in situations such as these it was normal that employees would take the required time by way of annual leave, Time off in Lieu (TOIL), flexi-leave or unpaid leave.  The Respondent tried to reach a compromise by proposing that Mr Phelan would take either annual leave or flexi leave. The Agency tried to discuss this but Mr Phelan referred the matter to the WRC.

Ms Walsh stated that the referral to Occupational Health was done by Mr Phelan’s line manager who needs to consider all requests for time off and the impact the giving of such time off would have on the team.  A new flexi system was introduced in 2024 and although Mr Phelan was not covered by the system the Agency allowed him avail of it. TOIL is not available to Mr Phelan.

Ms Walsh stated that management felt it would be better for Mr Phelan’s wellbeing if he took time off to attend the programme.

Ms Walsh stated that in 2016 when Mr Phelan had attended another similar programme it was agreed the time needed would be made up on a “half and half” basis, i.e., half the time needed would be built up and half the time needed would be taken as annual leave.

Ms Walsh stated that Mr Phelan’s line manager had attempted to engage with him about the matter but he had said no to her attempts.  Mr Phelan has continued to attend the programme and has done so by using built up time. The Respondent is not going to say he needs to take annual leave for these past hours, but it does need an agreed process for the future.

In response to questions put to her in cross examination, Ms Walsh stated that the reasonable accommodation provided was that Mr Phelan was allowed time from work to attend the programme and that he be allowed flexi time to accrue half the required hours.  The Agency is more concerned about how things are going to work in the future if a similar situation arises when an employee is looking for a half day every week for 22 weeks; the Respondent’s position is that it should be half flexi time and half annual leave. This, the Respondent believes is a fair compromise.

In conclusion, the Respondent submits that there was never any objection to Mr Phelan attending the programme in St Patrick’s Hospital, however there is an issue in the manner of his attendance and how the hours required were made up.  The Respondent is looking for the WRC to outline a process that will work.

 The Respondent notes that Mr Phelan has continued to attend the programme without taking leave.  The Respondent requests that the position put forward by management to Mr Phelan was reasonable.  Furthermore, where such a request is put forward again that Mr Phelan avails of annual leave in the first instance.  Where annual leave is not available, he can accrue up to 10 hours flexi leave in a four-week period to facilitate such release.

In light of my decision to treat this matter as an Equality complaint and having reviewed the written submissions and heard the evidence adduced by the parties, I find that the Complainant has failed to establish a prima facie case.

I have examined whether the Complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

To determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the Complainant must establish that he is covered by the relevant discriminatory ground.

Second, he must establish that the specific treatment alleged has occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this instant case, the agreed facts of the case are that the Complainant has a disability.  

The specific treatment alluded to did not take place; this case is about the system to be used in the future should the need arise.

In considering the third tier of the test, the Complainant has not proven that the treatment he received was less favourable than what would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

I find that the Complainant has not established a prima facie case and his complaint therefore cannot succeed.

Notwithstanding the above, I find it would have been better for the parties if this matter had been dealt with as an industrial relations dispute rather than a matter of equality rights.  Considering that I find the following.

As the Respondent is not looking to take back the hours the Complainant worked up and trade them for annual leave hours, that matter is moot, but this gesture by the Respondent should be appreciated by the Complainant.

Both parties are looking for clarity on what system is to be used in the future if the Complainant needs to attend another similar programme to the one in St Patrick’s Hospital.

Should this arise in the future I recommend that Mr Phelan be allowed avail of Time Off in Lieu, on a red-circle basis, for one third of the required time, one third of the hours required are to be taken by way of flexi-leave (continuing with the current arrangement on a special case basis) with the remaining third being taken as either annual leave or unpaid leave, with Mr Phelan deciding which type of leave he wishes to utilise.

This arrangement is specific to Mr Phelan and does not set a precedent for other employees. The parties should engage in constructive dialogue to work out the details of how this system will work in the future.

The Complainant was not discriminated against.

In his complaint form the Complainant submits that there are a number of ongoing IR issues related to attempts to transfer him and a colleague to a new regional team.  The complainant submits that his Interim Line Manager (ILM) has breached a number of agreements given to himself and his colleague.  Grievances have been lodged regarding these IR issues.

The Complainant submits that the management of these matters by his ILM have exacerbated his anxiety.  He has raised several concerns with his ILM but none of them were ever acted upon.

The Complainant submits that he sent a detailed email to his ILM outlining the negative impact her management was having upon him. Again, he submits no action was taken by his ILM to address his serious concerns. Following his email, the Complainant submits that he was advised on a telephone call that he would have to take unpaid leave or annual leave for all his programmes in St Patrick’s Hospital and he was being referred to the Occupational Health Physician (OHP) as his ILM stated that he was “not fit to work.” He attended the OHP and all was fine.

On 16 July 2024, the Complainant had a meeting with his ILM’s manager. This was an unsatisfactory meeting in the eyes of the Complainant as it became clear to him that the concerns he had raised previously had not and were not being treated seriously and that he was being painted in a negative light. The Complainant submits that his mental health is being weaponised against him and he is being victimised by (i) being referred to Occupational Health as being “not fit for work”, the clear implication on the referral form that the problems lie solely with his mental health without any reference to the ILM’s behaviours which were clearly outlined to her in writing (ii) seeking to force him to take annual leave or unpaid leave to attend the programme in St Patrick’s Hospital (iii) reporting his behaviour to her line manager (iv) the fact that he has expressed many ongoing concerns to his ILM and her management of him and his mental health, and the fact that none of them have ever been even acknowledged, portraying him in a negative light in relation to his mental health.

When asked what he wanted as way of redress, Mr Phelan stated that “having his case heard” and that he has “moved on.”  However, he believes he was victimised.

The Respondent provided a detailed written submission. The submission dealt with the mechanics of a re-organisation which commenced in 2023 and issues of a collective dispute which is the subject of a Labour Court investigation and is therefore outside the scope of this forum.

Ms Linda Walsh gave evidence at the hearing.

Regarding the allegations made by the Complainant, Ms Walsh stated that Mr Phelan does attend the Occupational Health Physician (OHP) from time to time; this is an appropriate action of an employer and has been done with the consent of Mr Phelan.  Ms Walsh stated that the Agency had tried to engage with Mr Phelan on a number of issues but he was not willing to engage.

Ms Rachel Dempsey gave evidence at the hearing.

Ms Dempsey, explained that when she became the Complainant’s manager it was agreed that she would refer him to the OHP every three months. Despite being instructed by Ms Dempsey not to send an email to the entire team, Mr Phelan went ahead and sent an email which was deemed to have been inappropriate. Having taken advice from HR on the email Ms Dempsey decided that Mr Phelan should attend the OHP, she consulted with Mr Phelan in advance.

Ms Dempsey stated that when she tried to set up meetings with Mr Phelan, he refused to meet her and referred to her behaviour. He sent her voluminous emails.  Ms Dempsey stated that Mr Phelan’s behaviour had a very negative impact of her.  She stated that she has always been courteous in her dealings with Mr Phelan. She is aware of his mental health and she has always tried to support him.

Ms Dempsey stated that she thought her relationship with the Complainant had been good; there had never been a cross word between them.  She stated that she would never weaponsie someone’s mental health against them.

In closing, the Respondent denies the Complainant was subject of penalisation or victimisation.  Ms Dempsey’s engagement with Mr Phelan has always been respectful.  She has tried to address the Agency’s needs while always supporting Mr Phelan.

I find that the Complainant has not established a prima facie case and his complaint therefore cannot succeed.

I find the Complainant was not victimised. From the evidence adduced I find Ms Dempsey’s actions and those of the Agency were those of a caring employer, trying to assist an employee and utilising the appropriate means to do so. I note that Mr Phelan wishes to move on and I hope that can happen.

The Complainant was not discriminated against.

Disability, discrimination, reasonable accommodation