Complainant

Respondent

Parties

Dermot Kelly

Saint John Of God Community Services Company Limited By Guarantee

Representatives

Aislinn Finnegan BL instructed by Dermot Monahan Solicitors

Lian Rooney IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065120-001

31/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00065120-002

31/07/2024

This complaint was submitted on 31st July 2024 and is in relation to alleged breaches of the Employment Equality Acts, 1998 – 2015. The Complainant gave evidence on his own behalf and the Respondent introduced several witnesses to give evidence during the hearing. They were Carmel Daly, Olive Taggart, Paula Hand, Gary Downey and Joan Halpenny.

A preliminary issue in relation to time frames was raised by the Respondent and this is dealt with further below.

The Complainant submitted the within complaints as well as two related cases. A decision in case reference ADJ-00056094 will issue separately. The Complainant confirmed in writing on 13th May 2025, and further at the hearing, that a dispute referred under section 13 of the Industrial Relations Act, 1969 had been withdrawn. That dispute held the reference number ADJ-00051292. Written submissions were received from the Complainant dated 19th December 2024 and although these submissions held the case reference number ADJ-00051292, the Complainant’s representative clarified that they were relevant to the within case. The Respondent provided written submissions and these were received by the Commission on 9th May, 2025. The Complainant submitted replying supplemental submissions on 15th May 2025 and the Respondent also provided supplemental written submissions on 16th May 2025.

All submissions and evidence have been taken into account in reaching this decision.

The Complainant’s second complaint, CA-00065120-002, was inadvertently brought under the Equal Status Act, 2000 instead of the Employment Equality Act, 1998 (as amended). This is addressed further below.

In his complaint form, the Complainant requested that an Irish Sign Language interpreter would attend the hearing. Unfortunately, the Commission was unable to secure the attendance of an interpreter on the day that this hearing was due to take place. The Complainant was asked if he wished for the hearing to be adjourned until an interpreter had availability to attend, however he confirmed in writing on 13th May 2025 that he wished to proceed even if an interpreter’s attendance could not be secured. It was stated that he would be in a position to follow the proceedings, give evidence and participate fully so long as there is only one person speaking at a time and where the face of the person speaking is directly visible to the Complainant. This was reaffirmed at the hearing and it therefore proceeded on that basis.

The Complainant submitted this complaint on 31st July 2024. He set out the following narrative on his complaint form:

CA-00065120-001 - I was victimised for taking an action set out in Section 74 of the Employment Equality Acts - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

There was an incident on 14/10/2023 in which another employee spoke in an inappropriate manner to me, including making insulting remarks in relation to my disability, as a result of which I had to take a period of sick leave from work. I made several complaints about this to my employer, however they failed to deal with the matter in any substantial way. As a result of this, i was left with no option but to make a complaint to the WRC. After my employer was notified that I had made this complaint, I began to feel pressured and harassed at work. No accommodation was made for me on my return to work, even though I had taken sick leave due to discriminatory workplace treatment, and i live with a disability, i.e. being profoundly deaf. Furthermore, Despite having returned to work 4 months prior, and having been declared fit for work by my Doctor, I was sent for a further medical assessment by my employer to determine if i was fit to continue work.

CA-00065120-002 - I have been discriminated against by a person, organisation/company who provides goods, services or facilities - Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

There was an incident on 14/10/2023 in which another employee spoke in an inappropriate manner to me, including making insulting remarks in relation to my disability, as a result of which I had to take a period of sick leave from work. I made several complaints about this to my employer, however they failed to deal with the matter in any substantial way. No accommodation was made for me on my return to work, even though I had taken sick leave due to discriminatory workplace treatment, and i live with a disability, i.e. being profoundly deaf. Despite the passage of several months since my initial complaint in this matter, There has been no resolution or substantial progress in relation to same, for large periods of time i have been blindsided and the discrimination which i faced had not been taken with sufficient seriousness.

The Complainant says that he was victimised and has been harassed by reason of his disability; that he has been refused reasonable accommodation and has been treated unlawfully in conditions of employment.

Complainant’s written submissions

The Complainant’s written submissions dated 19th December 2024 state that he is seeking significant compensation for effects of discrimination and harassment as per section 82(1)(c). It submits that he has been the subject of victimisation following the incident of disability harassment on 14th October 2023. He was not supported when he returned to work after a period of sick leave and his complaints were not dealt with in a timely manner. He was also subjected to an unnecessary medical assessment by an occupational health doctor some four months after he returned to work. The Respondent failed to progress his grievance and sought to pressurise him into withdrawing his complaint at a meeting on 9th February 2024. This caused him significant stress and upset, in particular, in dealing with the discriminatory comments that were made.

The Complainant’s written submissions dated 15th May 2025 state that complaint CA-00065120-002 is a complaint of harassment on the grounds of disability. The option for the Equal Status Act was inadvertently ticked but it clearly states that it was a dispute involving “another employee” and the Respondent has treated it as a complaint under the Employment Equality Acts. The Complainant made an application for an extension of time of the cognisable period and this is dealt with further below.

The Complainant’s submission acknowledges that he bears the burden of proof in a complaint of harassment and sets out the definition of same. The nature of the harassment is identified as the incident with his co-worker on 14th October 2023. The Respondent’s failure to deal with the harassment when he first complained of it in writing on 13th December 2023 had the effect of the harassment continuing to affect him during the entirety of the cognisable period. No further updates were received within the cognisable period of up to 19th December 2024.

The Complainant asserts that the Respondent is vicariously liable for the harassment committed by his co-worker unless it can prove that it took reasonable steps to prevent it, and it was submitted that it did not.

Submissions were also made in relation to ADJ-00056094 but these will be dealt with separately in that decision.

The Complainant is seeking compensation in respect of the effects of the harassment.

The Complainant also made submissions in relation to his claim of victimisation. It was submitted that there is no requirement for a claim of discrimination to succeed in order to invoke a claim of victimisation and the key elements to establish victimisation are:

The employee had taken action of a type referred to at s.74(2) of the Acts (a protected act),

The employee was subjected to adverse treatment by the respondent, and,

The adverse treatment was in reaction to the protected action having been taken by the employee.

It was stated that the Complainant’s evidence would satisfy the Adjudicator that the Complainant had raised a prima facie case of victimisation.

Application to extend time for reasonable cause

The Respondent raised, as a preliminary issue, that it would be applying to have this matter heard on a preliminary basis only. The reason for this application was because the Complainant identified an incident of 14th October 2023 as the act of discrimination and the Respondent’s submission was that this was outside the cognisable period and no reasonable cause had been shown for an extension. In responding submissions, the Complainant therefore formally applied for an extension of time.

Section 77(5) of the Employment Equality Act 1998 provides that claims for redress in respect of discrimination may not be referred after the end of the period of 6 months from the date of occurrence, or the date of the most recent occurrence. The WRC has jurisdiction under section 77(5)(b) to extend, for reasonable cause, the period within which a complaint must be submitted for a further 6 months, to such a period not exceeding 12 months. The Complainant formally made an application requesting an extension of time in respect of the harassment of 14th October 2023, which is an extension of 3 months and 17 days. The Complainant made this request in circumstances where the Complainant was attempting to address the conduct internally, and was not aware when he submitted the section 13 Industrial Relations Referral that the WRC would not have the jurisdiction to consider the harassment within the meaning of the Employment Equality Act 1998 in the absence of an additional statutory complaint.

In oral submissions, it was submitted on behalf of the Complainant that he accepted that he bears the burden of proof to show reasonable cause and that they must go beyond not knowing his legal rights. Two reasons were advanced to explain and justify the delay. Firstly, the Respondent dealt with this issue by way of the grievance and disciplinary policy, and this policy stated that this was how it should be addressed. The Complainant relied on the policy and the Respondent’s delay in concluding the process should be taken into account. Secondly, the Complainant suffered a great deal of stress which resulted in a period of sick leave. During this time, he struggled with the effects of the discrimination and, applying the test in Skansa, this should be considered as reasonable cause as it explains the delay. It was submitted that it would be just and equitable to extend the time frame.

Application to amend complaint form

The form used to submit complaint CA-00065120-002 inadvertently ticked the Equal Status Act 2000 option notwithstanding that the details of the complaint provided on the form clearly set out, inter alia, that “another employee spoke in an inappropriate manner to me”. The Respondent, at page 4 of its submission accepts the position in relation to the WRC Form not being a statutory form and as set out by the Supreme Court in County Louth VEC v The Equality Tribunal [2016] IESC 40. The Respondent’s submissions acknowledge that it has treated CA-00065120-002 as a complaint under the Employment Equality Acts and the Complainant is proceeding on that basis.

Complainant’s evidence

The Complainant stated that he had been working with the Respondent since 5th January 2005 as a carer. He has been deaf since birth and received a cochlear implant nine years ago. Vocabulary can be a challenge for him and he mostly receives information by reading lips, expressions and body language. He described an incident that occurred on 14th October 2023. During the course of a conversation with a co-worker, she referred to his “kind of people” and when asked what was meant by that, the reply was “deaf and dumb”. The Complainant replied this terminology was no longer used. He found the use of these words very offensive. He said that he is a deaf man, but he is not dumb. It felt absolutely horrific and made him feel as though he didn’t belong. Prior to this, he had felt appreciated in his role and part of the team. He did not know how to react or what to do. He applied for another job and received an offer, but as his pension would not transfer with him, he decided not to take it. He then met with a counsellor who suggested that he challenge what had happened and so he sent an email to his line manager on 13th December 2023. He asked for the problem and impact to be addressed, but he says that it never was.

On 9th February 2024, the Complainant was asked to attend a meeting with his line manager. He was deeply shocked to find that the person he raised the grievance about was also in attendance. It was a very difficult meeting. Things became aggressive and the Complainant felt completely blindsided. He thought that the two people in the meeting had planned this to sort it out before things went any further and felt that there was an attempt to make him sound like a liar. He told his line manager that he thought this was very unprofessional.

As nothing further occurred after this meeting, the Complainant followed up with the HR Manager on 3rd April 2024. He received a response enclosing the grievance policy and confirmed that he wished to proceed. During this time, he was struggling with work related stress.

The Complainant raised a further grievance about his treatment at the meeting on 9th February 2024. He made it clear how very unhappy he was with the approach that was taken. Eventually, on 22nd April 2024, it was confirmed that an investigation would take place and the Complainant attended a grievance meeting, however it took an inordinate amount of time for the process to be concluded.

As a result of this, and the Respondent’s failure to adequately address his grievances, he was forced to take a period of certified sick leave due to work related stress during the months of February and March 2024. Despite then being back at work for some two months, he was referred for an occupational health assessment by the Respondent which he attended on 8th July 2024.

The Complainant says that he was the subject of harassment on 14th October 2023 and that he was subjected to unnecessary medical assessment by an occupational health doctor. He further claims that he was not supported on his return to work and that the Respondent failed to progress his grievance in a timely manner. He is seeking compensation for the effects of harassment and victimisation.

Cross examination of the Complainant

The complainant was asked why, when the conversation took place on the 14th of October, he did not report it until the 13th December, a period of two months. He replied that he did not want to make a complaint. When an incident happened with someone else previously, he had been told to let it drop and thought the same thing would happen again. He asked Paula Hand (regional director) if he could move roles and sent an email about this. He looked for another job and did get one but could not take it up due to the impact on his pension.

The Complainant was asked if, when making the request to move, he mentioned the incident to anyone. He responded “no”.

The Complainant was asked if he agreed that he was absent from work from the 12th February 2024 until the 27th of March 2024 and he replied that he did not know, he would have to check the dates.

The Complainant was asked about the occupational health assessment referral and whether he thought it might relate to dismissal. He replied that he felt it was penalisation. He thought the Respondent was trying to find a reason why he couldn't work anymore. He was asked if anyone told him that he might be dismissed and he replied “no”.

Concluding remarks by Ms. Finnegan

The Complainant is aware that he bears the burden of proof in relation to his complaint of harassment. He is a deaf man who has worked for the Respondent for 20 years. He is committed to the role and doesn’t let his disability interfere with that.

He has made an application to extend the cognisable time period and has offered evidence to establish harassment in October 2023. Where there is no satisfactory investigation it is not open to the Respondent to re-run the investigation before the WRC. His colleague who made the comments did not have to attend the hearing, but as she did, she accepted in evidence that she used the term “deaf and dumb”. While the context was relevant for her, she nevertheless accepted use of inappropriate language. The effect of that language is more relevant than her intention in using it. While she may not have intended the effect, it had a profound impact nonetheless. The Complainant was on medication for the first time in his life and the effects are profound. The Respondent is vicariously liable for the comments made as it failed to take reasonable steps to prevent harassment. The Dignity at Work policy was not robust or used as it should have been. The grievance policy used to address this issue was wholly inadequate and it is not satisfactory that no one ever raised the Dignity at Work policy. External experts should have been used in this case for a full and fair investigation. The harassment was repeated due to the fact that the investigation was so devoid of fair procedures and it therefore cannot be relied upon.

The Complainant took protected action and suffered detriment as a result. That detriment was: a flawed investigation; an occupational health referral that caused great distress; a complaint against him that he never knew about and the financial and personal impact on him.

The Complainant asserts that the burden of proof has been met and shifted to the Respondent. Any compensation must be effective, proportionate and dissuasive. The Respondent is a large organisation with large funding and it is clearly not taking harassment seriously. The Complainant requires compensation because he has suffered the effects and now must also pay for legal representation. A course of action order is sought so that no one else is subjected to this again. The Complainant says that he is not alleging malice, but that the effect on him has been profound.

The Respondent denies the complaints in their entirety and made an application to have the matter determined by way of a preliminary issue.

Preliminary issue – complaint is out of time

The Respondent submits that the substantive allegation of less favourable treatment is the allegation related to comments allegedly made on 14th October 2023, which is beyond the cognisable period as provided for under the Employment Equality Act 1998. Given that the Complainant had already submitted a complaint to the WRC on 18th April 2024 regarding this incident, the Respondent is of the view that the Complainant cannot demonstrate reasonable cause and on that basis submits that the Adjudication Officer has no jurisdiction to hear this complaint.

In Sheehy v Most Reverend James Moriarty the Tribunal held that ‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing’’ where ‘’the claims were not instituted within the time periods set out in the legislation’’.

The Workplace Relations Act, 2015 at section 41 states:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates…

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The test for determining reasonable cause was set out in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll in the following terms:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.

The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

It is widely acknowledged that the test places the onus on the Complainant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the Complainant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Complainant must establish, as a matter of probability, that he would have presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay.

Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.

The Respondent also relied upon a High Court case described as Minister for Finance V CPSU and others, 2007 which found that:

‘’The Court is of the view that it is a fundamental principle that ignorance of one’s legal rights and responsibilities does not provide a justifiable excuse for a failure to bring a claim in time or to the appropriate body’’.

The Respondent further noted a UK Court of Appeal case, Beasley v National Grid [2008] EWCA Civ 742, where the Appellant was 88 seconds out of time in submitting his appeal to the Court and it was deemed to be out of time.

The Respondent submits that the Complainant has failed to demonstrate reasonable cause. The Respondent supports this with the Labour Court determination in Brothers of Charity Services Galway v Ciaran O Toole, EDA177, where the Labour Court stated:

“The Court cannot accept that deploying the Respondent’s internal procedures operates to prevent the Complainant from initiating the within complaint within the statutory time limit provided under the Act. Section 77 of the Act is very clear. It specifies that a person who claims to have been discriminated against may seek redress by referring the case to the WRC. Such a complaint should be in writing and submitted within the time limits provided for in Section 77(5).”

It is the view of the Respondent that the mere fact the Complainant had submitted a WRC complaint in April 2024 is detrimental to any claim that he can establish or rely on reasonable cause to extend the time as per Section 41(8) of the 2015 Act.

Notwithstanding the Respondent’s reliance on the application for the matter to be concluded by way of preliminary issue, it is disputed entirely that the Complainant has a complaint which could succeed under the Employment Equality Act 1998. The Respondent submits that the Complainant has failed to discharge the burden of proof to establish a prima facie case.

Submissions on establishing a Prima Facie case of Discrimination and Burden of Proof

Section 85 (a) of the Employment Equality Acts 1998 to 2015 requires a Complainant to present facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory grounds cited. 

The Respondent says that the Complainant has failed to identify a comparator who was treated more favourably.

It also relied on the case of Southern Health Board v Teresa Mitchell, DEE011, [2001] ELR 201, where the Court stated: 

The first requirement is 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 [Complainant] 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. 

As 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 Respondent says that direct discrimination consists of two elements: the first is the less favourable treatment of the Complainant and the second is the existence of discriminatory grounds for such treatment. Both elements must be satisfied for a claim of discrimination to succeed and the Respondent says that the Complainant’s allegations are grounded on vague and inaccurate assumptions which do not satisfy this test.

Further, the Complainant has not identified any other employee as a comparator and therefore the Complainant has provided no evidence of discrimination.

It is the Respondent’s position that the Complainant has failed to establish a prima facie case of discrimination and as such the burden does not shift to the Respondent in this instance. 

The burden of proof rests with the Complainant to show that he was discriminated against within the meaning of the Employment Equality Acts 1998 to 2015. It is the Respondent’s position that no evidence has been adduced to support such a claim.

In the event that the matter is not determined by way of preliminary issue, the Respondent offered evidence in response to the complaints.

Evidence of Ms. Carmel Daly

Ms. Daly said that she is a senior staff nurse with the Respondent and has been on extended covid leave since the end of May 2024. She was asked how well she knew the Complainant in October 2023 and she said that, at that time, she had only met him a handful of times. On 14th October 2023, the Complainant asked her how she was finding the new house (her new placement) and they engaged in conversation. She said that the Complainant asked her about her background and so she discussed her previous roles in the disability sector. She talked about the initiatives that she had been responsible for bringing in, such as a disability passport that could accompany patients on their medical journey. She described the conversation with the Complainant as two way. She said that during the course of this conversation, she talked about a lady whose disability passport had a diagnosis of “deaf and dumb”. She said that the information on the passport schedule was misleading and she was shocked when she read that as she considered it offensive language. She asked the Complainant what the correct terminology was and this led the discussion onto Irish Sign Language and the charity, Chime.

The Respondent’s representative asked Ms. Daly if she recalled whether she was face to face with the Complainant during this conversation. She said that no, he was diagonally across from her. She said that she never made the remark “your kind of people”. She would never have made that remark. She advocates on behalf of people with disabilities and would never say that. She said that the conversation came to a natural conclusion, as all do. She was asked if the complainant appeared offended and she said no, the conversation just came to a natural ending.

Ms. Daly described how she went on planned annual leave from the 11th December to the 8th or 9th of February 2024. When she returned from annual leave in February 2024, Olive Taggart told her that “Dermot said you've upset him”. She asked for details and was told she had said “Your kind of people”. She said she did not understand this and didn’t know what she could have said that would have upset the Complainant. Olive Taggart suggested an informal discussion the next day. Ms. Daly then described a very unsatisfactory meeting on the 9th February. She said that she was conscious that it was an informal chat and so she asked the Complainant what it was all about. She said that he got aggressive and shouted “you know what it’s about, it’s in the email” and then said to Ms. Taggart “you told me I wouldn’t have to work with her”. This was the first that she had heard of an email and said that she thought the meeting should be brought to a close. The Complainant said that he’d been blindsided and he and Ms. Taggart began to argue. Ms. Daly said that she was going to leave but that she expected that this matter would be treated confidentially, to which Ms. Taggart said “well that’s not going to happen now is it Dermot?” Ms. Daly felt that the whole team knew something that she didn’t and she left the room. She could hear raised voices after that. When Ms. Taggart re-appeared she asked her if there was an email and was told that there was. Ms. Daly said that she would not meet again unless HR were present and was so distressed by this meeting that she asked for Employee Assistance. When she next returned to work, she emailed HR to say that she wanted them involved from this point on.

Cross Examination of Ms. Daly

It was put to Ms. Daly that she had used the words “deaf and dumb” in the conversation. She said that yes, those words were spoken in the context of the conversation. But her recollection was that she said she was shocked that those words were used in a diagnostic setting. She said that if the Complainant had told her something she said was inappropriate, she would have stopped straight away. She denies ever having said “your kind of people”.

Evidence of Ms. Olive Taggart

Ms. Taggart is a clinical nurse manager with the Respondent. She had worked with the Complainant for just under three years. She received the Complainant’s e-mail on the 13th December 2023 and she called over to him the next day to discuss it. Ms. Daly was already on annual leave at that stage. She said that the complainant agreed to leave things until Ms. Daly came back. The Respondent’s representative asked her if she discussed options to resolve the situation and she said that she did. She proposed resolving issues informally when Ms. Daly returned from leave and the Complainant agreed. She was also asked if the Complainant asked her to progress matters any further at that point, for example for there to be a formal investigation. Ms. Taggart replied “not at that stage, no, we agreed it would be an informal chat”. The words she used were for an informal chat at house level. She did not have a plan in advance for the meeting on the 9th February. It occurred because she had asked the Complainant to come in half an hour early to support one of the residents and she herself was doing administrative work. Ms. Daly was there at the same time and so she asked there and then for both of them to come in to chat. She asked if they agreed to this and they said yes.

Cross examination of Ms. Taggart

Ms. Taggart was asked if she considered the e-mail of the 13th December to be a complaint. She replied that the Complainant didn't express to her that it was a complaint. She explained to him what course of action could be taken after it but she did not consider it an official complaint. Ms. Taggart was asked if she had received any training on the dignity at work policy and she said that she had. She acknowledged that what the Complainant had raised was serious and said that she thought the first step was an informal discussion. Ms. Finnegan asked Ms. Taggart if she provided the Complainant with the dignity at work policy and she said no. It was put to Ms. Taggart that this was a matter that needed attention and, in response, she reiterated that the Complainant had agreed to wait until Ms. Daly returned from leave. When asked if it was correct that she said she would roster the Complainant and Ms. Daly on different shifts, she replied that her recollection was that she would do her best to make sure they weren't rostered together.

Evidence of Ms. Paula Hand

Ms. Hand is the regional director for the Respondent. She has over 40 years of experience with the organisation. She said that it is common to refer employees for occupational health assessments for a variety of reasons, particularly where work stress is cited on a medical certificate. She described a group meeting every fortnight where absences are reviewed and anybody who has stress mentioned on a medical certificate is referred to occupational health. She said the Complainant's referral would have been discussed in one of those meetings. The process is that they go through the list of absences and see what's on each certificate. If stress is there then that person is referred to occupational health. She does not specifically recall when the decision was made to refer the Complainant, but she does recall that he was already back at work and had previously been on the list. The decision was made that it would be better to send him due to what was on his medical certificate. The referral is an opportunity for people to talk to occupational health and to ascertain whether or not support is needed. She believes everyone is aware of this policy and that people are sent to occupational health for a lot of reasons.

Cross examination of Ms. Hand

Ms. Hand was asked if she accepted that she had responsibility for policies and procedures in the organisation. She accepted this and noted that the first step when an issue arose would be to contact the first manager and then things would move up through the levels from there. She accepts that there was a delay in the process regarding the Complainant but says that this was partly due to the Complainant himself being on sick leave; annual leave and bereavement leave. Ms. Daly was then out for a prolonged period of time. The matter was discussed at team meetings every Tuesday and an update on the investigation sought. Ms. Hand was asked if she raised any alarm due to the delay taking place. She replied that she did not because there were valid reasons for the delay. She said that efforts had been made to sort this out locally but she only became aware of that after the fact. She was asked why there was a delay in the occupational health referral. She replied that she did not know, it just slipped through the cracks and the referral was made as soon as it was picked up.

Evidence of Gary Downey

Mr. Downey is the director of nursing care and support for the past 10 years. He was appointed to hear the Complainants grievance. When asked what steps he took to investigate, he said that he sought the timelines and dates. People were then invited to meet with him so that he could gather the facts. He said the only thing shared with him were some emails and text messages. Mr. Downey was asked if he received any handwritten notes and he replied “no”. He requested a witness statement from the Complainant and met staff to go through the facts and establish the evidence. He said that he looked to meet with the Complainant to explore the nature of the grievance. He was asked if he spoke with Ms. Daly in advance of July 2024 about this matter and he said “no”.

Cross examination of Mr. Downey

Mr. Downey was asked if he should have issued a terms of reference for his investigation. He replied that in hindsight, yes. He was asked if he thought the dignity at work procedure would have been more relevant. He replied that this was a straightforward complaint about an interaction between two staff members and how it was managed. When asked if he thought that the definition of harassment was relevant, he said yes, he would accept that. When asked if a wide range of conduct could be considered harassment, he accepted that it's a broad definition, yes. He was asked why he did not issue the harassment policy to the Complainant and he said that it was an oversight but he accepts that it is relevant. When asked, looking back, would he do things differently, he said yes.

Mr. Downey was asked about Ms. Daly's complaint. He said that was a complaint in relation to the process, not any individual. He denied that it was a complaint against the Complainant. He said that he investigated the process and that was the nature of this. It was put to him that he never provided this complaint to the Complainant. He accepted that and said that was because it was not a complaint about the Complainant. He specifically asked Ms. Daly if her complaint was about an individual and she said, no, it was not. He investigated her complaint as a complaint against the process because she was clear it was not against an individual. He was asked if he was satisfied that fair procedures had been followed and he said absolutely. It was an equitable and fair process. It was put to him that the Complainant had suffered detriment from this process and he disagreed.

Evidence of Ms. Joan Halpenny

Ms. Halpenny is the HR manager for the Respondent. She recalls that a group decision was made to refer the Complainant to occupational health but she does not recall specifically making the referral. She accepts that it would have been her who did this. Ms. Rooney told Ms. Halpenny that an allegation had been made during the hearing that the occupational health referral was made as a result of the Complainant making his complaint. She asked if there was any link between the two things. Ms. Halpenny replied that there absolutely was not. She said that from 2002 there was a policy in place that where any medical certificate cited stress in the workplace then a referral would be made to occupational health. That policy was introduced as far back as then. Ms. Rooney asked Ms. Halpenny if writing a complaint would necessarily invoke formal procedures. Ms. Halpenny replied that it would not necessarily invoke a formal procedure as all stages had an informal option available. She was asked if that meant meeting with someone to discuss things informally and she replied “yes”.

Cross examination of Ms. Halpenny

It was put to Ms. Halpenny that the Complainant was at no point provided with the Dignity at Work policy and that it is not effectively in place in the organisation. Ms. Halpenny replied that it is normally up to a staff member to seek advice and she would not make the decision on which policy to pursue. It was put to her that she did not give the Complainant a copy of the Dignity at Work policy. And she said no, she didn’t think that she did but she noted that there is an intranet available to all employees and all of the policies are on this. They are available to everyone.

Ms. Halpenny was asked if any alarm went off after a delay of six months in dealing with the complaint. She replied that there were a number of absences by both parties and this was the reason for the delay. Ms. Halpenny was asked when she first learned of the delay and she replied that it was in an e-mail from the Complainant in early April. She was asked how the occupational health referral fell through the cracks. Ms. Halpenny said there was a significant focus on attendance and absence, and in the process of carrying out a review, a couple of people were identified whose referrals had been missed.

Concluding remarks by Ms. Rooney

The Respondent says that the Complainant has not established facts within the cognisable period that are sufficient to shift the burden of proof onto the Respondent. He further has not demonstrated reasonable cause such that an extension of the cognisable period should be granted. The Respondent says that not being aware of the legal implications is not sufficient for reasonable cause and that no acts of victimisation have been shown other than the occupational health review which, the Respondent says, is clearly as a result of an absence review.

The Respondent says that the Complainant’s case hinges on a single conversation in October 2023, this is outside of the cognisable period and the Complainant has failed to meet his burden of proof.

Factual background

These complaints originated from a conversation between the Complainant and a colleague on 14th October 2023. The Complainant alleges that his colleague used discriminatory language and his colleague denies this. The issue was first raised with the Respondent in an email dated 13th December 2023. That same day, the Complainant’s colleague commenced an extended period of annual leave. The Complainant’s line manager met with him and she gave evidence that the Complainant agreed that this issue would be dealt with informally when his colleague returned from annual leave. The Complainant disputes this.

The Complainant’s colleague returned on 9th February 2024. Their line manager asked both parties to attend a meeting. Both the Complainant and his colleague expressed deep dissatisfaction with this meeting and the manner in which it was held. The Complainant’s colleague raised a grievance in relation to the handling of this meeting and that grievance was upheld. The Complainant was absent from work due to a combination of sick leave, annual and compassionate leave from 12th February 2024 until 27th March 2023. On the 2nd April 2024, the Complainant contacted the HR Officer to follow up on his complaint. He was advised about the grievance process. The Complainant was on annual leave between the 8th April and 14th April 2024. On 18th April 2024, the Complainant lodged a dispute with the Commission under the Industrial Relations Act, 1969, alleging bullying and harassment in the workplace.

On 22nd April 2024, the Complainant was advised that his complaint would be investigated and he was invited to an investigation meeting on 16th May 2024. The Complainant declined to attend the meeting on the basis that “the workplace relations commission has taken control of this case”. A further invitation to attend a grievance meeting was issued on 28th May 2024 and the Complainant responded that “it is my right to decline this invitation”. In response, the Complainant was advised that, as his employer, he needed to be met with to progress the issue. The Complainant agreed to meet and a meeting took place on 26th June 2024. On 27th June 2024, the investigator wrote to the Complainant to advise that he would be seeking to meet with the Complainant’s colleague on his return from annual leave on 15th July 2024. The Complainant attended an occupational health assessment on 8th July 2024 and asserts that the referral for this assessment was retaliatory. The within complaints were submitted to the Commission on 31st July 2024.

On 7th August 2024, the investigator wrote again to the Complainant to state that he was unable to meet with the Complainant’s colleague as she remained unfit for work and that it was his intention to meet with her the week of her return to conclude the process. The Complainant submitted a further complaint form to the Commission on 19th December, 2024, alleging substantially the same grounds as the within complaints.

Preliminary Issue – Application to amend complaint form

Complaint number CA-00065120-002 was brought under the Equal Status Act, 2000. The Complainant made an application to amend this to reflect the fact that it is in fact a complaint under the Employment Equality Act, 1998.

In considering this matter, I have noted the judgement of McKechnie J. in the Supreme Court case of County Louth VEC –v- The Equality Tribunal [2016] IESC 40 where it was held that:

“31. As is evident from the aforegoing (para. 19 supra), the initiating step for engaging with the provisions of the 1998 Act is that an applicant “… seeks redress by referring the case to the Director” (s.77 (1) of the 1998 Act). In the absence of any statutory rules to facilitate such a process, the Tribunal itself, in the form of guidelines, has drafted and published what is an appropriate form to use in this regard ……

32. I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose; in fact, the Tribunal itself has so held in A Female Employee v. A Building Products Company DEC-E2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end.”

I note that this judgement also related to a claim under the Employment Equality Acts and find that this reasoning is similarly applicable in this case. The online complaint referral form used by the WRC is not a statutory form, and I am satisfied in this particular case that the Complainant clearly identified a complaint relating to his employment on the complaint form when he stated “another employee spoke in an inappropriate manner to me”.

I further find that the Respondent does not suffer any prejudice by this amendment as it dealt with the complaint in submissions as though it were a complaint under the Employment Equality Act, 1998. That being the case, I agree to the amendment of the complaint form and will deal with CA-00065120-002 as a complaint under the Employment Equality Act, 1998.

Preliminary Issue – Application to extend time for reasonable cause

In the first instance, I wish to note that the Respondent made submissions relating to the principle of continuum of discrimination in the event that the Complainant may have sought to rely on that principle. The Complainant has not raised any argument, in submissions or evidence, in relation to continuum. In seeking to apply this principle, the onus is on the Complainant to do so and in the absence of any submissions on the point, I will address it no further.

The within complaint form was submitted on 31st July 2024, the cognisable period is therefore 1st February 2024 to 31st July 2024. This is the time frame within which I can consider a claim for redress in respect of discrimination, penalisation, harassment or victimisation. It is the 6 month period preceding the lodging of this complaint form and the date of occurrence must have taken place within this time.

The complaint form stated, under both complaints, that “There was an incident on 14/10/2023 in which another employee spoke in an inappropriate manner to me, including making insulting remarks in relation to my disability”.

The Respondent raised, as a preliminary issue, the fact that the Complainant did not submit his complaint form in relation to this dispute within 6 months from the date the incident occurred. The Complainant in turn applied for an extension of time in supplemental submissions.

The Complainant’s written submission states: ‘’The Complainant formally makes an application to the WRC to grant an extension of time in respect of the harassment of 14th October 2023, to the 31st July 2024, an extension of 3 months and 17 days’’. It goes on to say that the Complainant made this request in circumstances where he was attempting to address the said conduct internally and was not aware when he submitted the Section 13 Industrial Relations Referral, that the WRC would not have the jurisdiction to consider the harassment within the meaning of the Employment Equality Act 1998 in the absence of an additional statutory complaint. He is therefore seeking an extension of time so that the period 14th October 2023 – 31st January 2024 is reckonable for the purposes of the adjudication process.

At the hearing, Ms. Finnegan also said that the Complainant’s period of sick leave should be taken into account as he was absent from work due to the effects of the alleged harassment on him.

The Respondent submits that the Complainant has failed to demonstrate reasonable cause. It was argued that neither the exhausting of internal procedures or being unaware of statutory rights was considered reasonable cause. Labour Court precedent was relied upon in support of this position.

I will consider the reasons advanced by the Complainant and assess whether they can be considered as reasonable cause for an extension of time.

Section 77(5) of the Employment Equality Act, 1998 (as amended) states 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 of the Workplace Relations Commission 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.

The alleged act of discrimination was the incident on the 14th October 2023.

The Labour Court set out the now well-established test for reasonable cause for extending the time limit to 12 months in Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338]. In that decision it stated as follows:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

Taking the above into consideration, for an explanation of reasonable cause to succeed:

(i)               A complainant must explain the delay and afford an excuse for the delay.

(ii)              The explanation must be reasonable.

(iii)            There must be an objective standard applied to the circumstances of the case.

(iv)            There must be a causal link between the circumstances and the delay.

(v)              A complainant must show, that if the circumstances were not present, he or she would have submitted the complaint on time. 

It is evident from the above that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. The Labour Court has further emphasised that where reasonable cause is shown a decision maker must still consider if it is appropriate in the circumstances to exercise their discretion in favour of granting an extension of time and whether or not the respondent has suffered any prejudice by the delay. 

The Complainant has identified three reasons for the delay in this case. Firstly, that he was exhausting internal procedures by attempting to address the conduct internally; secondly, that he was not aware when submitting a dispute under the Industrial Relations Acts that the WRC would not have the jurisdiction to consider the harassment within the meaning of the Employment Equality Act 1998 and finally that he needed to take a period of sick leave as a result of discrimination.

The Labour Court has also dealt extensively with similar arguments made in favour of extending the cognisable timeframe. In relation to exhausting internal procedures, the below cases are relevant.

In Brothers of Charity Services Galway v Kieran O’Toole (EDA177)it held that:

“The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limits provided under the Act.

Section 77 of the Acts, is very clear, it specifies that a person who claims to have been discriminated against may seek redress by referring the case to the Workplace Relations Commission, such a complaint should be in writing and submitted within the time limits provided for in Section 77(5).”

In Business Mobile Security Services Ltd T/A Seneca Ltd v John McEvoy (EDA1621)in relation to utilising internal grievance procedures the Labour Court held:

“The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.

The Court finds that such a decision cannot justify the delay in bringing proceedings under the Act and accordingly determines that the complaint is statute barred.

The Complainant, in the alternative sought an extension of time. He relies on the same arguments as set out above and in addition submits that he meets the tests set out by the Court in the settled case law. In particular he submits that he has explained reason for the delay and submits that it was commensurate with the duration of the grievance procedure. He submits that he acted immediately after the outcome of the process was available to him.

The Respondent submits that the Complainant is effectively seeking to second guess his decision not to proceed through the statutory procedures available to him and that his delay no more justifies an extension of time that it did the delay itself.

For the reasons set out above the Court finds that the Complainant opted not to present a complaint under the Act and belatedly changed his mind when his chosen alternative course of action did not avail him. The Court finds, in the circumstances of this case, that the Complainant has not set out reasons such that would justify the delay in bringing proceedings under the Act. Accordingly, the Court rejects the application to extend time.”

I note that the Complainant was engaging in the grievance process with the Respondent when his complaints would have been in time, and that he further was in a position to submit a dispute on 18th April 2024 under section 13 of the Industrial Relations Act, 1969. I believe that the Complainant chose the internal grievance route as well as seeking relief under the Industrial Relations Act, 1969. In my view, the reasoning in the Labour Court Determinations set out above in Brothers of Charity Services Galway v Kieran O’Toole and Mobile Security Services Limited v John McEvoy apply to the circumstances of this case and I therefore do not find that there is a reasonable cause for an extension on this basis.

Regarding the Complainant’s second ground, that he was unaware of his statutory rights when submitting his dispute under the Industrial Relations Acts, I note that the Labour Court has also addressed this issue in Ervia -v- Deaglan Healy PWD2020 when it stated:

“The Court is of the view that it is a fundamental principle that ignorance of one’s legal rights and responsibilities does not provide a justifiable excuse for a failure to bring a claim in time or to the appropriate body”

This principle also applies in this case and I do not consider that it is a ground for reasonable cause.

Finally, the Complainant says that the period of sick leave should be taken into account. In the absence of supporting medical evidence that the Complainant would have been unable to exercise his statutory rights for the duration of the extension period sought, I do not agree that it is a ground for reasonable cause. Even if I were to accept that it was a valid ground, it does not explain a delay of over three months in submitting the complaint.

I have considered the submissions of the parties on the time limit issue and the request of the Complainant’s representative to extend time by a further three months and seventeen days. Taking account of the foregoing decisions of the Labour Court, I do not find that there is reasonable cause to extend the cognisable period in this case and for that reason I do not grant the extension.

The events of 14th October 2023 will therefore not be addressed in this decision as the Complainant is statute barred from proceeding with a complaint that occurred outside the cognisable period.

This decision is concerned with any acts within the cognisable period of 1st February 2024 to 31st July 2024.

Complaint CA-00065120-002

As set out above, I accept that this complaint is in fact made under the Employment Equality Act, 1998 (as amended) (the Act). In his complaint form, the Complainant selected that he had been discriminated against on the grounds of his disability.

Sections 6(1) and (2) of the Employment Equality Act, 1998 at relevant parts state:

6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) - (f) [not relevant……]

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

It is accepted by all parties that the Complainant has a disability within the meaning of the Employment Equality Acts, namely that he is a deaf man.

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

85A (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The effect of this is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.

Melbury Developments Limited v Arturs Valpeters, [EDA0917] expanded on what is required to establish the initial proof that discrimination has occurred:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

My first task therefore is to consider if the Complainant has shown that, based on the primary facts, he was discriminated against by the Respondent within the cognisable period.

I am not satisfied that the Complainant has identified less favourable treatment than another person in a comparable situation, commonly known as a comparator, on the grounds of disability. This is an essential element to meet the burden of proof that discrimination can be taken to have occurred. In the absence of a comparator, the Complainant has not discharged the burden of proof upon him and I find that he has not been discriminated against within the cognisable period.

The Complainant also selected the options of harassment, victimisation and “other” on his complaint form. I am unaware from submissions and evidence what “other” may relate to and therefore have no information on which to substantiate this aspect of the complaint. Victimisation is addressed further below in relation to the second complaint, CA-00065120-001. Submissions from the Complainant’s representative make clear that this complaint is one of harassment on the grounds of disability.

Harassment

Section 14A of the Employment Equality Act, 1998 (as amended) relates to harassment. It states:

14A.(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as "the victim") is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as "the workplace") or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

The meaning of harassment is set out in section 14A(7). It states:

(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.

Harassment is therefore defined as unwanted conduct related to a discriminatory ground that has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating, or offensive environment. The burden of proof rests on the Complainant to establish, on the balance of probabilities, that the alleged harassment occurred, including the conduct complained of.

The Complainant presented as a respectful gentleman and gave clear evidence of the impact these events had on him. He spoke of the pride he took in his work and how much he had enjoyed it for the first 15 years.

The unwanted conduct identified was a conversation with a colleague on 14 October 2023. However, this incident falls outside the cognisable period and is therefore beyond my jurisdiction. The issue for determination is whether any conduct occurred between 1 February 2024 and 31 July 2024 that was related to the Complainant’s disability and had the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The Complainant argues that the Respondent’s delay in addressing his grievance compounded the effects of the October 2023 incident. I do not accept that this constitutes harassment in and of itself, as there is no evidence that it was related to the discriminatory ground. The Complainant has not demonstrated that any delay was connected to his disability.

On the evidence presented, I am satisfied that no conduct within the relevant period can be construed as harassment. Accordingly, the Complainant has not established a prima facie case, and I do not find in his favour.

Reasonable accommodation

On his complaint form, the Complainant also identified failure to provide reasonable accommodation as a complaint. However, in the course of his evidence he did not identify any accommodation that the Respondent had failed to provide. I am unaware of any specific request for accommodation that was not provided to the Complainant. On that basis, this complaint has not been substantiated, and I do not find in favour of the Complainant.

Complaint CA-00065120-001

Victimisation

S.74(2) of the Employment Equality Act, 1998 states:

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Legal principles

According to Kimber and Bruton in Employment Law, (2nd Ed), Bloomsbury Professional Ltd, [2017] at 17.67, the three key elements of victimisation are as follows:

a)     “The employee had taken action of a type referred to at s.74(2) of the Act (a protected act);

b)     The employee was subjected to adverse treatment by the respondent, and;

c)      The adverse treatment was in reaction to the protected action having been taken by the employee.

The foregoing elements are aimed at demonstrating that there is a causal connection between their taking of proceedings, or protected act and the adverse treatment by the employer.”

It is therefore for the Complainant to show what protected action was taken; what adverse treatment occurred and that the adverse treatment was in reaction to the protected act.

Protected act

The Complainant identifies the protected acts as making a formal complaint on 14 December 2023; repeatedly followed up and escalated grievances and referring the matter to the Commission under the Industrial Relations Act and the Employment Equality Acts.

Adverse Treatment

The detriment suffered is identified as the following:

·        The Respondent failed to take the complaint seriously.

• The Complainant was unexpectedly surprised by a meeting with the accused colleague without prior consent.
• The Complainant was referred to occupational health, which he believes was retaliatory.
• The Respondent conducted a flawed investigation process, failed to progress the investigation meaningfully and failed to notify the Complainant of a complaint against him.

Adverse Treatment in reaction to protected act

The Complainant argues that all adverse actions occurred after he made protected complaints.

Applying facts to legal principles

As set out above, the cognisable period in this case is 1st February 2024 to 31st July 2024. I am satisfied that the Complainant had taken a protected act within that period, namely raising a grievance in April 2024 and submitting a complaint to the Commission in April 2024. I must now consider if the Complainant was subject to adverse treatment and, if he was, was that treatment in reaction to the raising of the grievance.

The first treatment identified above is that the Respondent did not take the complaint seriously. I have considered the evidence of the Complainant and the Respondent witnesses in relation to this point. When the Complainant sent the initial email on 13th December 2023, his line manager immediately met with him. There is a conflict on the evidence regarding whether there was agreement to wait for Ms. Daly to return from leave, but in any event a meeting was arranged with Ms. Daly immediately on her return and the Complainant had not raised the issue again in the intervening period. Both Ms. Daly and the Complainant expressed deep dissatisfaction with this meeting and complaints relating to the handling of it were upheld. However, action was taken.

The Complainant was then on a period of leave from 12th February to 27th March. When he returned to work the following week and raised the issue with HR it was then progressed at that point, notwithstanding the Complainant’s reluctance to participate. A further delay then occurred due to Ms. Daly’s absence on extended sick leave. In considering whether or not the Complainant was subjected to adverse treatment, I find that the Respondent did not fail to take the complaint seriously. From all the circumstances, it appears to me that the Respondent did act when required and consequently I do not find that this constitutes adverse treatment.

The second adverse treatment identified by the Complainant is that he was unexpectedly surprised by a meeting with the accused colleague without prior consent.

The meeting of the 9th February 2024 was an attempt to address the complaint in an informal manner. Ms. Taggart gave evidence that this approach had previously been discussed with the Complainant. I accept, and I believe that both the Complainant and Ms. Daly are in agreement, that the facilitation of this meeting was very badly handled. Neither party was sufficiently aware of what would be discussed and both expressed shock and surprise at the content and conduct of the meeting. However, I do not accept that the mishandling of this meeting was an act of retaliation for the Complainant’s raising of the issue. Rather, it seems to me that it was a misguided attempt at mediation. I am therefore not satisfied that any adverse treatment was in reaction to any protected act taken by the Complainant.

The third adverse treatment identified is that the Complainant was referred to occupational health, which he believes was retaliatory.

The Complainant gave very clear evidence that he believed the referral to occupational health was a means of finding a way to stop him from working. He was entirely credible on this point and it is clear that it had a profound impact on him. The Respondent’s witnesses gave evidence that referral to occupational health is a routine occurrence and happens for a variety of reasons. I accept that this is generally the case in most organisations, although that was obviously not made clear to the Complainant at the time. The question for me in this case, given the elapse of time from the Complainant’s period of sick leave to the referral, is whether it constitutes adverse treatment. On the balance of probabilities, I do not find that it does. I accept the evidence of Ms. Halpenny that it is a longstanding policy, dating back to 2002, that a referral to occupational health is made when the absence is as a result of work related stress. I also accept her evidence that in the course of a review a number of employees were identified as having “[fallen] through the cracks” and referrals were made on that basis. I find that this referral does not constitute adverse treatment and was not in retaliation for protected acts.

The final adverse treatment is that the Respondent conducted a flawed investigation process, failed to progress the investigation meaningfully and failed to notify the Complainant of a complaint against him.

As to whether or not it was a flawed investigation, even if I were to accept that some procedural deficiencies rendered it flawed, the Complainant has not provided any evidence that this is in reaction to the protected act and I therefore do not consider it victimisation.

During the hearing, the point was repeatedly made that the more appropriate method of dealing with this issue would have been under the Dignity at Work policy. While that may indeed have been the more appropriate method of addressing this complaint, I do not agree that the Respondents failure to do so was in reaction to the protected acts of the Complainant.

Regarding failure to progress the investigation meaningfully, I note that the Complainant was on various types of leave between 12th February 2024 and 27th March 2024. Shortly after his return, he moved his complaint from an informal stage to a formal stage. On 22nd April, 2024, following the appointment of an investigator to hear the grievance, he was invited to a meeting to discuss his complaint. He initially refused to participate in this process. The process resumed again once the Complainant agreed to meet and a meeting happened on 26th June 2024. The investigator then advised the Complainant that he would be on leave until 15th July 2024. This complaint was submitted on 31st July 2024.

The Complainant says that delay in progressing the investigation is a form of adverse treatment. In this particular case, I think that it is disingenuous to suggest that the delay was solely of the Respondent’s making. The cognisable period for this complaint is 1st February to 31st July 2024 and within that time the Complainant was absent for a considerable period and then refused to participate for some time. I do not find that there was a failure to progress the investigation meaningfully during this time and therefore do not consider this adverse treatment.

Finally, regarding the allegation that the Complainant was not notified of a complaint against him, I accept the evidence of Mr. Downey that the complaint from Ms. Daly was related to the process, including how the meeting on 9th February 2024 was handled, and that it was not about the Complainant. This grievance was upheld and is reflective of the fact that the meeting was detrimental to all concerned, but that does not mean that it was a retaliatory act and the Complainant has failed to establish that it was. Further, the Complainant did not learn of this complaint until shortly before the hearing of this matter and so I do not accept that it could have constituted adverse treatment within the cognisable period.

In relation to the totality of the adverse treatment identified by the Complainant, it has not been established either: that it constitutes adverse treatment; or that any adverse treatment was in reaction to the making of a protected act. On that basis, the Complainant has not established that he was victimised within the meaning of the Employment Equality Act, 1998 (as amended).

Conclusion

For the reasons set out above, I find that the Complainant has not established facts from which it may be presumed that there has been discrimination or victimisation in relation to him within the cognisable period. I therefore do not find in favour of the Complainant.

For the reasons stated above, I do not find in favour of the Complainant.

Harassment – Victimisation – Reasonable Cause – Burden of Proof