ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037724
Ascain Training & Support Service
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 20/09/2022
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following 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.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
The parties were capably represented on both sides and the witnesses were all courteous to me and the process.
Evidence was given on oath/affirmation and I allowed the right to test the oral evidence presented by cross examination.
Much of this evidence was in conflict between the parties. I have taken time to review all the evidence both written and oral. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or found superfluous to the main findings. The Supreme Court has noted that minute analysis or reasons are not required to be given by administrative tribunals. Only broad reasons need be given.
The hearing took place in public. No application was made for the hearing to be in private. In fact it was agreed by the parties and in particular the Complainant for the hearing to be in public.
Having reviewed all of the evidence based on the confidential medical evidence presented to me, I have decided to anonymise the parties names in this decision.
The Complainant commenced work with the Respondent on the 15 November 2018 as a sales assistant.
She was in receipt of the minimum wage. Her weekly pay was circa €350.
She worked different shift hours as per a rota.
The Complainant went on sick leave on 12 February 2020 and remained on sick leave up to the date of the hearing. There was no sick pay policy in place.
Summary of Complainant’s Case:
The Complainant gave evidence at the hearing. Her advocate was from the Community Mental Health service. She also received support at the hearing from the local Mental Health Advocacy Services.
The crux of the Complainant's case relates to a meeting which took place on the 10 February 2020.
She was called to the office at her workplace without notice. Her manager was in attendance as well as three other members of staff. She described these members of staff as keyholders. They had a supervisory role in the workplace.
At the meeting the Complainant was criticised for being too slow at doing her work. She was compared with other members of staff. She was asked how her parents would think of her work. This aggrieved her greatly.
The Complainant believed that the background to this meeting was her earlier criticism of other staff members for creating a situation where the shop floor was understaffed. She also had had an incident with her manager on the 6 February 2020 during which her manager verbally abused her in the staff canteen.
At the meeting on 10 February 2020, the Complainant felt humiliated and bullied. She described how she felt sick, her heart was racing, how her head was in a daze and how she was unable to think straight.
She was then asked to rate her performance from 0-5 on a template form. After she filled out the form, she felt really unwell. She described that she did not know whether she was "coming or going". She said she never felt so belittled in all her life.
The Complainant was told by her manager that she was under review until 10 March 2020 and if her manager was not happy with her work, her hours would be cut. Her manager also told her that if her work was not up to standard, she would start procedures to terminate her contract.
After the meeting, the Complainant was told to return to the shop floor. She went to the ladies toilet and was violently sick. She described how she was trembling and felt very faint.
The Complainant was able to continue with the rest of her shift, but she was visibly very upset.
She described how she returned to the workplace the following day but could not face anyone. She had her lunch outside in her car. She was not in any state to continue working and was certified unfit to work.
The Complainant experienced severe anxiety, depression and suicidal thoughts. She submitted sick certificates from her GP every week. These certificates referred to a workplace -related stress. She was required by her manager to contact the store each week (Thursday) by phone. This was extremely upsetting for her. At the hearing the Complainant stated that this made her feel physically sick. It added to her feeling of being bullied. She was also sent a weekly rota by email detailing her work hours. This was very upsetting for her as she was constantly reminded each week of her work and the traumatic events she experienced there. This took place each week until April 2021 when she raised it again at a Long Term Absence meeting with HR.
I was furnished with a number of medical reports from the Complainant’s medical personnel.
The first medical report was dated one month after the incident on 10 February 2020 and said it would be "prudent if the workplace were supportive to her at this time and not sending her rosters or taking other actions which are causing greater distress to my patient."
The narrative in the medical reports ties in with what was given to me in evidence.
Following the February 2020 incidents, the Complainant was referred to a psychiatric consultant. As of the start of 2022 she was having monthly calls with her psychiatrist. She was getting support from an anxiety support group and meets with her support worker every week. She was on medication to help with her anxiety.
On 7 September 2020 she raised a grievance with the Respondent. This related to the incidents which occurred in February 2020. She was deemed unfit to engage with the grievance procedure at the time.
In March 2021 she resubmitted her grievance and she was deemed fit to engage with the grievance procedure.
A HR manager conducted the grievance investigation between April and May 2021. The grievance was not upheld. The Complainant appealed the outcome of her grievance in June 2021. The appeal was not upheld.
As of the date of the hearing the Complainant had still not returned to the workplace. She said she could not endure intimidating and aggressive interactions as she had experienced.
She kept replaying the traumatic event that occurred on 10 February 2020 in her mind. She said it was constantly on her mind.
The Complainant also submitted that on numerous occasions during the LTA meetings the HR manager revealed to the Complainant that HR had not received medical certificates from the Complainant for the previous months. This caused the Complainant huge amounts of stress as she had to locate the past medical certificates and resend them again.
The Complainant felt much pressure to make a decision as to whether she was returning to work.
Under cross examination, the Complainant agreed that she had not attended with her GP before the 10 February 2020. She agreed she had no mental health incidents before 10 February 2020.
Summary of Respondent’s Case:
The Respondent submitted that the Complainant completed a pre-employment medical questionnaire two days prior to her commencing employment in 2018. The medical questionnaire explicitly referred to any reasonable accommodation required to assist the employee in their role and if the persons circumstances changed, to let their manager know.
Part II of the questionnaire asked if the person had a disability and the Complainant answered “no”.
Between the 13 February 2020 and 21 April 2022 the Complainant submitted 58 doctors certificates. All of these were from the same doctor. These referred to the Complainant suffering from work-related stress. The Respondent submitted that none of the certificates referred to a disability or any accommodation required by the Complainant.
The Respondent has a policy for staff who are on long-term absence (LTA) due to illness to maintain contact and do so through long-term absence meetings.
The first LTA meeting with the Complainant was held in June 2020. The Complainant was referred to the company doctor in October 2020. The Respondent discontinued LTA meetings in January 2022.
The Respondent explained that probation reviews and performance appraisals are completed for all staff.
The Complainant raised a grievance with the Respondent on the 7 September 2020 (seven months after she went on sick leave). The Respondent's occupational health advisors did not deem the Complainant fit to engage in the grievance process in October 2020.
The Complainant resubmitted her grievance with the Respondent on 2 March 2021. The Respondent's occupational health advisors deemed the Complainant fit to engage in the grievance process at that stage.
HR at the Respondent conducted the grievance investigation meetings with the Complainant and witnesses in April and May 2021. The investigation did not uphold the grievance and this was communicated to the Complainant's on the 15 June 2021. The Complainant appealed the outcome of her grievance on 17 June 2021. The outcome of the appeal was that the previous decision was upheld. This was communicated to the Complainant on 12 July 2021.
The Complainant was provided with a copy of the company Handbook. This comprised many policies including the Company sick leave, grievance and respect and dignity at work policies.
The Respondent referred the Complainant to occupational health. It also provided the Complainant with access to the company Employee Assistance Programme and notified her of such an occasions during her absence.
It submitted that it followed professional medical advice in respect of its engagement with the Complainant for the processing of her grievance.
The Respondents case was that the Complainant did not raise any complaint under the company Dignity at Work policy. It stated that the first time it became aware of the bullying and harassment complaint was in February 2022 in correspondence with the WRC.
The only witness for the Respondent was the HR manager who engaged with the Complainant while on sick leave. She stated that the Complainant was "not comfortable sending sick certificates to the store and she arranged for them to be changed to the HR manager herself".
The Complainant's store manager left the company and the only documentation that the HR manager had to rely on was any documentation which were notes of meetings signed by both of them. In her opinion there was nothing to back up the claims of the Complainant. There was a record of the performance review meeting. It set out recommendations to be worked on.
Findings and Conclusions:
The issues for decision in this case are:
(i) Whether or not the Complainant was subjected to discrimination on the grounds of disability contrary to Section 8 of the Employment Equality Act 1998 (as amended)
(ii) Whether or not the Complainant was subjected to harassment contrary to Section 14(A) of the Employment Equality Act 1998 (as amended).
In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
It is necessary to determine at the outset whether the condition from which the Complainant suffered was a disability within the meaning of Section 2(1) of the Acts.
From the evidence the Complainant it was clear that she had not been happy in her workplace for some time. She described herself as having been branded as a troublemaker. She felt paranoid when her work colleagues spoke in Polish. She felt they were looking at her and talking about her. She felt that the shop was dirty and that the other staff did not care. I have no doubt that the Complainant was a conscientious employee.
Based on the evidence presented to me and the medical documentation and on the Complainant's own admission, she was not suffering from a disability on 6 February 2020 or 10 of February 2020.
I note in particular the medical report of the Complainant's GP dated 11 March 2020. The letter was dated one month after the Complainant went on sick leave. It stated that the Complainant was medically unfit for work due to work-related stress. It stated she had been very unwell. It set out that she needed medication for anxiety and depression.
The Labour Court in A Government Department v A Worker EDA094, noted that the definition of disability in the Employment Equality Act 1998 (as amended) does not refer to the extent to which the manifestation or symptoms must be present. The Court acknowledged that symptoms which are present to an “insignificant degree” could be disregarded in determining whether the condition amounts to a disability.
I accept that the events of the 10 February 2020 triggered a medically certified psychiatric illness in the Complainant and I am treating this as a disability.
The Complainant made a number of attempts to submit her complaint form to the WRC. She identified failure to provide training as one her complaints and bullying and harassment. Her complaint in relation to training predated the meeting of 10 February 2020. As such it predated the commencement of her disability. I make no finding of discrimination in this regard.
The complaint form received by WRC on the 27 January 2020 set out that the complaint fell under bullying and harassment. It stated that “ harassment is ongoing re meetings”.
The definition of harassment in the Employment Equality Act 1998 (as amended) is set out in broad terms at s.14A which provides that harassment is any “unwanted conduct related to any of the discriminatory grounds. This unwanted conduct 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 Employment Equality Act 1998 (as amended) does not apply to a generalised bullying or harassment which has no link to the discriminatory grounds. This is made clear in the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI 2012/208) which came into force on 31 May 2012, replacing the earlier 2002 Code of Conduct. It has since been replaced by Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020.
Section 14(a)(7) of the Employment Equality Act 1998 (as amended) requires the conduct for harassment and to have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.” This is subjective test which focuses on the personal response of the individual to the conduct to which they have been subjected.
The Complainant gave evidence of while she was on sick leave, she continued to receive her work rota. This required her to telephone her store manager (with whom she had two traumatic incidents on the 6 February 2020 and 10 February 2020) every Thursday to "ring in sick". She submitted that this made no sense at all when she had already submitted a sick certificate.
I note in particular the medical report of the Complainant's GP dated 11 March 2020. The letter was dated one month after the Complainant went on sick leave. It stated that the Complainant was medically unfit for work due to work-related stress. It stated she had been very unwell. It set out that she needed medication for anxiety and depression. The letter went on to say that she should be given time to recover in a "stress free environment and would feel it would be prudent if the workplace were supportive to her at this time and not sending rotas or taking other actions which are causing greater stress to my patient”.
At this stage in March 2020, the Respondent was on notice of the Complainant suffering from anxiety and depression. Despite this request by her GP, the Complainant had to keep ringing in until April 2021. Her direct evidence was that this "put her anxiety through the roof".
This was also a time when she was deemed unfit to engage with the grievance procedure by the Respondents Occupational Health doctor.
As set out above the focus in the definition of harassment is upon how the conduct of the Respondent was regarded by the recipient rather than upon the motive or intention of the perpetrator.
As set out in Bolger, Bruton, Kimber; Employment Equality Law 2nd Edition 2022
“by including reference to the violation of a person’s dignity, substance is provided to the concept of harassment in the equality framework. It obviates the need for a comparator, and harassment ……. are prohibited conduct, as they are inconsistent with the respect for the basic dignity and humanity of the alleged victim. The move away from requiring a comparator permits a greater focus on the ways in which harassment can cause harm to its victims.”
That said, the authors go on to set out that “some type of objective examination of the behaviour must be undertaken by the Equality Tribunal or the Labour Court in order that a particularly sensitive complainant is not permitted to unreasonably contend that very minor behaviour which no reasonable person would describe as harassment constitutes a breach of the Acts”.
The Respondent placed importance on the fact that the Complainant raised a grievance with the Respondent seven months after the alleged incidents and did not raise any complaint of bullying and harassment with the Respondent prior to her complaint to the WRC in February 2022.
I have reviewed the grievance submitted to the HR manager in September 2020 and it referred to the Respondent "requested that I also phone into the L store weekly to explain my absence, this was very difficult for me to do".
Having considered the unrefuted evidence of the Complainant, on the balance of probabilities, I accept that through her doctor’s certificate, she did submit medical evidence that she was suffering from a disability. I find that the Complainant was harassed in the requirement for her telephone her store on a weekly basis during this part of her sick leave.
The next question to look at is whether the Respondent is vicariously responsible for the harassment and whether the employer took reasonable steps to prevent it from taking place.
The Respondent sought to rely on the defence under s.14A(2)(a) Employment Equality Act 1998 (as amended) on the basis that it had a policy on Dignity and Respect in the workplace in the employee handbook. I read the policy and find it to be the most minimal document that could be produced. It falls well short of what is required in the Codes of practice for a policy. The document was not sufficient to meet the standards required and it was clearly not effectively communicated to employees. I was not furnished with evidence that management personnel were trained to deal with incidents of harassment or to recognise its manifestations. The document could not be described as “comprehensive, accessible, effective that focused on prevention, best practice and remedial action”
It is ironic that this policy was provided to the Complainant on the 10 February 2020 and accepted as having been read and understood by her on 10 February 2020 (The date of her distressing performance review with her manager).
The Complainant is entitled to compensation for the effects which flowed from this harassment. The distress and indignity the Complainant suffered has influenced my decision on the quantum of compensation.
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.
The complaint of harassment is well founded. I award the Complainant €8,000 in compensation.
Under section 82 (1)(e) I have the power to order the Respondent to carry out a specific course of action and I direct that it review its Dignity at work policy especially in light of the Code of Practice on Sexual harassment and harassment at work (2022).
Dated: 18th January 2023
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Disability. Harassment. Defence under s.14A(2)(a) Employment Equality Act 1998 (as amended)