ADJUDICATION OFFICER DECISION
An Electrical Company
Complaint Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. Given the sensitivity of the issues involved in the instant complaint, I have exercised my discretion to anonymise the names of the parties.
Summary of Complainant’s Case:
The complainant commenced employment with the respondent on 21 November 2011. The complainant submits that in August 2018, she was promoted from assistant buyer to interim small domestic appliances buyer (SDA) while the previous SDA buyer stepped into the old managing director’s role until 1 February 2019 when a decision would be made on a permanent basis for both him and the complainant. In October 2018, the complainant states that she had to go on long-term sick leave due to mental health issues. The complainant asserts that she disclosed all information to HR with regard to medication and psychotherapy which she was undergoing. The complainant states that on the advice of her doctors, she did not return to work and submitted monthly sick certificates to the company. The complainant submits that on 25 January 2019, she received an e-mail from the HR department stating ”I see that your most recent cert expires on 30/01/2019, can you advise on the likelihood that you will be signed off and will be returning to work after this date ? as you are aware your contract expires on 1/02/2019 (for the interim position) can you advise if you would like to receive any internal adverts and any vacancies that may arise for any positions after that date”. The complainant states that she felt this e-mail was very intimidating and felt bullied by same and felt like she was being harassed into returning to work. The complainant submits that this e-mail sent her into severe anxiety in which she thought if she did not go back to work, she would lose her job. She states that she was already out on leave due to mental health issues due to depression and anxiety and this e-mail was not a welcome help/support. The complainant asserts that subsequently on 29 January (2 days before her contract was due to end for her current position) an announcement was made that the current whites buyer would now become the new SDA buyer and the digitals buyer was now the whites buyer and an e-mail was sent out to advertise for an assistant buyer which the complainant submits was her old position. The complainant submits that on 30 January, she sent the HR department another current sick certificate until end of February 2019, however she states she got no response to inform her about the above developments.
The complainant submits that as a result of the respondent’s actions she felt completely bullied and harassed in relation to coming back to work and then felt bullied because she did not come back. The complainant submits that this has left her feeling very vulnerable and discriminated against due to her mental health issues which are depression and anxiety. The complainant is claiming that she was discriminated against on grounds of her disability in relation to her conditions of employment, in that she was subjected to harassment and bullying by the respondent company.
Summary of Respondent’s Case:
The respondent states that the complainant commenced employment with the company on 21 November 2011. On 6 June 2016, the complainant took up a position as a junior assistant buyer and signed a fixed term, specified purpose contract on 1 August 2018 as an interim buyer, which was one level up from junior buyer. The specified purpose of the contract was to cover the post as a result of changes in the business and the contract was agreed to expire on 1 February 2019, at which time the complainant would revert to her permanent role of junior assistant buyer. The respondent submits that the complainant at all times understood that the fixed term role was temporary and short term in nature and that her employment status would revert to that of being a permanent employee in line with her contract of employment on the expiration of the fixed term contract on 1 February 2019.
The respondent submits that the complainant has never, in the 7 years and 6 months that she has been employed by the company, raised a formal complaint or a grievance in relation to anyone or any treatment she perceives to have received in the workplace. The complainant has repeatedly engaged with the respondent in a direct manner on a pleasant basis and has always indicted her happiness in her role and has described the company as “wonderful” and “like family”. The respondent states that the complainant informed Ms. Q (HR department) in October 2018 that her medical condition was not work-related.
The respondent maintains that the first indication it ever had of a grievance being raised on behalf of the complainant was in the Workplace Relations Commission complaint form dated 1 February 2019. At that time, the complainant was absent from work for reasons of certified sick leave for personal mental health issues since 31 October 2018. The respondent states that the complainant did not return to work between 31 October 2018 and the date of her resignation on 5 April 2019. It states that the complainant informed a senior member of the respondent organisation on 29 April 2019 that she is now employed by a different company.
The respondent refers to the complainant’s e-mail dated as recently as 9 April 2019 where she says: “I loved my job and the company for the entire time I was there … And again, I really want to say thank you to the senior management team for all the opportunities and support that they have given me over the years.” The respondent submits that the positive nature of the complainant’s engagement with it, even at the late stage of her voluntary resignation, is entirely at odds and is inconsistent with her allegations of discriminatory treatment. The respondent asserts that for the avoidance of any doubt, the complainant’s role as Assistant/Junior Buyer remained available to her up to and until the complainant resigned on 5 April 2019.
Ms. Q of HR had an informal meeting on 31 October 2018 wherein the complainant said that she was not “doing great at all” and that she was “feeling very down”. The complainant expressed a concern about work and said that she didn’t think her role was going well and because she needed to take time off for sick leave, she felt that she was letting the team down by being out. The respondent contends that the complainant was reassured by Ms. Q on behalf of the company that she did not need to worry about work and that the Buyers in the department were covering her work. The complainant was insistent during this meeting that she would not be out of work for long. Ms. Q on behalf of the respondent asked the complainant not to put pressure on herself by giving her a time frame for her return to work, as she would need to take time to recover. At this meeting, Ms. Q confirmed to the complainant that even though this was a personal health issue, the respondent would be willing to support her by offering her 3 counselling sessions. Ms. Q reiterated to the complainant at the end of the meeting that she need not worry about work and to stay in touch if she wanted to talk or meet up again. The respondent states that during the course of the next 2 months, Ms. Q kept in contact with the complainant by way of frequent email and text exchanges. During one of the email exchanges, Ms. Q said to the complainant on 20 November; “If you feel you would like to return on a phased basis, we could have a look and see what we could facilitate? Have a think about it and let me know. If you want to have a chat or meet for coffee at any stage, just let me know.”
On 28 January 2019, the respondent states that it announced a re-organisation of the senior buyers in the complainant’s department. It related to a re-organisation of duties and titles attached to senior buying roles and there was no interview or selection process. No new senior buyer role was created during this re-organisation. The senior buyers simply refreshed their duties and responsibilities within their existing contractual arrangements with the respondent and there was no change to pay.
The complainant alleges that she was not given an opportunity to apply for or interview for buying roles within the department – that of small goods buyer and digital goods buyer. The small goods buyer role is a senior buyer role, which was subsumed by a senior employee as part of the departmental reorganisation in the company. The respondent states that the digital goods buyer role, one level up from a junior role, was advertised on 28 January 2019 and it was for this reason that the complainant was contacted twice on 25 January 2019 to enquire if she wished to receive notifications of vacancies in the department. The respondent submits that had the complainant confirmed when asked if she wished to be informed regarding advertisements of positions internally, the company would have appraised her of those positions and offered her an opportunity to interview.
The respondent asserts that if the complainant was interested in receiving vacancies for another role, she ought to have indicated her interest in being made aware of same, as requested twice on 25 January 2019, and with the respondent clearly saying that it looked forward to hearing from her. The respondent submits that the complainant’s only response was to say she would reply “next week” regarding her sick certificate but did not acknowledge (at the time or since) the offer from the respondent to keep her informed about vacancies.
The respondent asserts that the role that was a level up from junior buyer that the complainant had on a fixed term basis as Smalls Appliance Buyer, which was due to expire on 1 February 2019 was only filled by another senior buyer in circumstances where after 1 February 2019, the complainant was to revert to her permanent junior assistant buyer role.
The respondent asserts that in any event there is no statutory obligation on employers to notify employees on long term sick leave in relation to internal employment opportunities. Notwithstanding this, the respondent company went beyond the minimum statutory floor to engage in best practice and proactively reached out to the complainant not once but twice by email on 25 January 2019 to canvass her interest in receiving job adverts and vacancies in the buying department. The complainant engaged with these emails but stayed silent in relation to the specific request in relation to keeping her informed as regards vacancies.
The respondent asserts that the complainant is also in breach of the well-established principle that she must exhaust internal grievance and dispute resolution procedures available to her before seeking external third-party relief, Conway v Ulster Bank (UDA474/1981). The respondent states that the complainant was well aware of the comprehensive internal dispute resolution procedures available to her, to include a grievance procedure. The respondent submits that at no stage has the complainant ever made it aware of any grievance nor has she ever used the suite of policies available to her to deal with any perceived issues. In fact, it states that the complainant’s direct interactions with the respondent have been positive and amicable throughout.
In conclusion, the respondent refutes the complainant’s allegations of discrimination on grounds of disability and states that there is no basis for her claim in this regard.
Findings and Conclusions:
I have considered all the evidence both written and oral presented to me. 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. In a previous Determination, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows –
"Section 85A of the Acts 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.”
The issue for decision by me in this case is whether the complainant was discriminated against on the disability ground in her conditions of employment.
Disability is defined in Section 2 of the Acts:
‘‘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;
I am satisfied that the complainant’s disability which is depression and anxiety comes within the definition outlined above.InSouthern Health Board v Mitchell  ELR 201 [Section G, No. 5], the Labour Court considered the requirements of a case of prima facie evidence as follows:
“The first requirement is that the claimant 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 those primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”
In Graham Anthony & Company Ltd v Margetts (EDA 038) [Section G, No. 6], the Labour Court further commented on the potential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established and 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 for discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”
Having adduced the totality of the evidence in the instant claim, I find that the complainant has failed to discharge the evidential burden on her and she has failed to establish a prima facie case of discrimination on grounds of disability. While the complainant has a perception that she was subjected to bullying and harassment by the respondent, it is not borne out by the facts in this case. In order for the complainant to ground a case under the Employment Equality Acts, she is required to demonstrate a nexus in relation to her treatment in employment and her disability. I do not construe the e-mail sent by the respondent on 25 January as a bullying and intimidatory tactic. While the complainant argues that she was not informed of advertisements for positions within the company, I am satisfied that the complainant was asked on 25 January if she wished to be informed of said positions, but she did not revert to the respondent on this matter. While the complainant alleges that she was subjected to bullying and harassment, it does not tally with the evidence furnished in written documentation and the testimony given at the hearing. I am also cognisant of the support given by HR and Ms. Q in particular, while the complainant was on sick leave vis a vis meeting with the complainant, the offer of ongoing support, counselling sessions and a phased return to work. In this regard, I am satisfied that the respondent behaved reasonably and in line with its common law and statutory duties.
Having carefully considered all the evidence in the within case, I find that the complainant has failed to establish the requisite nexus between her alleged less favourable treatment and her disability and therefore has failed to establish a prima facie case of discrimination on grounds of disability. Accordingly, her case fails.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relation to her conditions of employment.
Dated: September 25th 2019
Workplace Relations Commission Adjudication Officer:
Disability, harassment, no prima facie case