ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050310
Parties:
| Complainant | Respondent |
Parties | Tara O'Flaherty | Kare Plus Midwest |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | Daniel McNamara BL instructed by Houlihan Solicitors | Peninsula Business Services Ireland |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00061642-001 | 19/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00061642-003 | 19/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00061642-004 | 19/02/2024 |
Date of Adjudication Hearing: 27/09/2024, 13/01/2025
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. Where submissions were received, they were exchanged. Evidence was given under oath/affirmation from the complainant, Noelle Ryan for the complainant and Kristian Doyle General Manager and Gary Cregan Managing Director for the respondent.
Background:
The complainant submits that she did not receive core terms and that she was discriminated against was harassed on disability grounds and did not receive reasonable accommodation. |
Summary of Complainant’s Case: CA-00061642-001
Preliminary Issue: The complainant submitted that earlier instances were out of time but that there was an incident of 22/08/2023 which was within time and that the complainant submitted a letter and no response was received and the person who should have dealt with it had left the office.
Substantive Issue: The complainant submits that she commenced employment with the Respondent on 12/12/2022 and handed in her notice on 11/09/2023 along with a sick certificate from her doctor, and indicated her intention to utilise the sick certificate in lieu of working the relevant notice period.
The Complainant interviewed with the Respondent on 05/12/2022 and was offered a role as Healthcare Manager by Gary Cregan of the Respondent on 09/12/2022 before commencing employment 12/12/2022 and relies upon text messages sent between the Complainant and Gary Cregan of the Respondent over the relevant period. There were initial delays in being set up owing to Covid-19 in the office of the Respondent, and due to delays in obtaining a health tender, which was, in large part, the reason for the Complainant’s employment with the Respondent.
The Complainant was paid the sum of €210.30 by the Respondent on 22/12/2022 along with €253.72 on 26/01/2023 and thereafter paid 09/03/2023 €826.44, 16/03/2023 €826.43, and 24/03/2023 €825.25. Notwithstanding her employment with the Respondent commencing on 12/12/2022 the Complainant was not provided with the information required by the Act within the time periods prescribed by same. The Complainant first received a contract on 28/03/2023 and relies upon a signed copy of same and the Respondent failed in its statutory obligations.
The complainant suffers from rheumatoid arthritis and on 22/08/2023 this visible disability which is observable at conversational distance within her hands, during her employment with the Respondent, and particularly, at a meeting involving a number of employees of the Respondent, the Complainant’s manager, Kristian Doyle, contorted his hands in an attempt to mimic the complainant’s disability and mocked her in front of her coworkers. This unwanted conduct related to the Complainant’s disability caused the Complainant considerable distress, violated her dignity, and created an intimidating and/or hostile and/or humiliating and/or offensive and/or humiliating environment for the Complainant. There was a clear nexus between the Complainant’s disability and the harassment.
The test to be considered is a subjective one and whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts. Further, the Complainant relies upon the United Nations Convention on the Rights of Persons with Disabilities, as ratified by the European Union. The Complainant further respectfully submits that she suffered harassment by an employee of the Respondent, for which the Respondent is responsible. The Complainant felt she could not engage with the relevant grievance procedure due to the nature of her relationship with her manager, to whom such a grievance would have to be reported, and in particular, where her manager was the source of the harassment in question.
The Respondent failed in its statutory obligations to provide the Complainant with the relevant terms of her employment until March 2023. Further, another employee of the Respondent, and the Complainant’s manager, harassed the Complainant with unwanted conduct which violated her dignity, and created an intimidating and/or hostile and/or humiliating and/or offensive environment for the Complainant.
The evidence of the complainant is that she applied for the position and had been a disability manager and she believed it was to be 9-5 job and her understanding was that she was home care tender. You do not just run with a tender as there is garda vetting involved and her role would involve leading a team, engaging with care givers and that is she trained to a master’s level and has worked for many years.
She did not receive anything until a contract was drawn up in February 2023 dated March 2023 and that when she started in December 2022 there was verbal communication about the hours. She was told that she would be in the office until the tender came through and there was no mention about it being a trial basis. Pay was received for December, January, and February 2023 and that she asked for terms and conditions.
She has rheumatoid arthritis and changed career from being an Industrial Engineer and had an interest in home care side of things and thought she could make a difference. With her rheumatoid arthritis she can be stiff and sore but is in remission, had surgery and uses keyboard sporadically and it did not arise with the role she applied for. In April 2023 Mr Doyle came to the organization and there had never been an issue with him and she had recommended Mr Doyle for the role. On a few occasions he mimicked the disability in her hands and when she said she needed a new computer as it was not compatible, he waved his hands and this occurred on 22/08/2023. Four people were present when this happened and do not feel comfortable giving evidence and Mr Doyle made her embarrassed and she felt vulnerable. It was the final straw as she had endured enough bullying and tried to hold her head up as they had a friendship but she had to resign and her blood pressure had risen and she was told by her doctor to take 2 weeks off work. She did not submit a grievance as she felt she was bullied and Mr Doyle was her manager and there were three incidents involving Mr Doyle and the other manager Mr Cregan had stepped back from the role.
Another incident occurred in early July when they were putting together a bed and he threw a male body part from the mannequin and she believed this was because of her health and also because she is single. The other 2 incidents were related to disability and the office was closed because of covid. She returned around 02/01/2023 and arrived at 10 am and the tender had been pushed out and Mr Cregan wanted to discuss options on 09/01/2023. She was told the tender had not passed, and because there was no work she went holidays from 10/01/2023 till 13/01/2023 and did a half hours work during that time and came into work on 19/01/2023 and did 2 hours work and there was no update on the tender. On 22/02/2023 she was advised that the Care manager for disability would not be back
Under cross examination she said she applied for the position around May/June 2022 with a cv and was interviewed with Mr Cregan and Ms Ryan. She was advised her role would be to look after home care and Ms Ryan would look after the disability area and she would look after disability if Ms Ryan was not available and started 19/12/2022. It was full time, paid into her bank account and did not work all hours at the beginning as her services were not required albeit she was available. She told Mr Cregan she was taking holidays and signed a contract on 28/03/2023 and raised grievances but not in writing. She met Gary Cregan on one occasion and there were appraisals done and she denied that she called children “chuckie” and said she 100% disputed that and was not privy to that note in which Mr Doyle is purported to have documented that and she was not given a copy of that. and she said the claim she called a child ‘chuckie’ could have been fabricated.
She had been advised there was an application for a tender and she said she did not put her disability on her application form but said it at interview and was not asked for a doctors cert and that she did not request anything from the respondent regarding her disability. She received a phone and laptop and the laptop did not work with overheads. She said she had recommended Mr Doyle for the role and he was the person who made the comments about her hands and one had been about a bed and a body part. She was told on 21/12/2023 that the office would be closed because of covid and they said that the tender had been pushed out till February and that she would be contacted on 09/01/2023 and she met Mr Cregan on 09/01/2023 and she was advised that Ms Ryan was out and that the tender had not been passed. She had a laptop and phone to work with and with no available work went on holidays on 10/01/2023, was asked to come in on 19/01/2023 and there was no further update on the tender.
The evidence of Ms Noelle Ryan was that she left the respondent in February 2023 on health grounds and due to work related stress. She had interviewed the complainant and found her a great candidate and the complainant started work for the respondent on following Monday. The complainant had wanted part-time but agreed to full time and the witness did not know what salary the complainant was offered. The complainant was told the job was Monday to Friday 9-5 and Ms Ryan left in February 2023 and had no involvement after that. The complainant covered the area of disability while the witness was out.
Under cross examination Ms Ryan confirmed that she left because of stress and that it did not end well. She said the complainant made reference to her hands during interview by explaining the surgery that she had and she was in remission and there was nothing specific said about her role and the process of the tender was quite rushed and she did not recall the complainant in the office the week of 19/12/2022 and that the interview with the complainant was informal. She received payment in a similar manner to the complainant and was paid hourly into the bank account.
Case law cited included A Worker v A Hotel [2008] ELR 73Walsh v Cedarglade DEC-E2016-132, Fag og Arbejde v Kommunernes Landsforening (C-354/13) [2015] I.R.L.R. 146,Jette Ring v Dansk almennytiggt Boligelselskab (C – 355/11) [2013] IRLR 571, Nail Zone Ltd v A Worker [EDA 1023].
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Summary of Respondent’s Case: CA-00061642-001
The complainant was employed by the Respondent as a ‘Home Care Manager’ from the 28/03/2023. Preliminary Issue: The respondent submitted that the complaint is out of time. The complaint was lodged on 19/02/2024 and on the complaint form, the Complainant states that the most recent date of discrimination was 28/02/2023. The complainant failed to submit her claim within the requisite six-month period of the last date of discrimination. No ‘reasonable cause’ was exhibited for the delay and the complainant has not advanced grounds of ‘reasonable cause’ such as would satisfy any consideration of an ‘extension’ of time. The Respondent respectfully submits that the Complainant has not named a suitable ‘comparator’ under the provisions of the Acts. This preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense’. The respondent asked to determine the jurisdictional and threshold aspects of the preliminary issues raised.
Substantive Issue: The original contract of employment of the complainant was signed by the complainant on the day she commenced as an ‘employee’ which was 28/03/2023 and her first contract included the core terms of the complainant’s employment. There were some initial shifts worked in Dec 2022 and Jan 2023 as a ‘trial’ but this was a suggestion by the respondent for the complainant to see whether the position might suit her.
Within this complaint the Complainant provides insufficient relevant details in order to ground her claims, and the Respondent submits she has failed to raise a prima facie case of discrimination. The Complainant claims discrimination by reason of disability, and failures to give ‘reasonable accommodation’ and harassment. This complaint is out of time and the complainant never raised a request nor issue regarding ‘reasonable accommodation’, a matter that the respondent was in a position to deal with had it been raised with them at the time. The complainant has failed to discharge the burden of proof. The Respondent respectfully submits that the Complainant has not proved the primary facts in order to satisfy that they are of significance and raise the presumption of discrimination. The Respondent asserts that insufficient facts have been adduced, and, the complainant never raised an issue of disability nor one of being discriminated during her employment with the respondent.
In Dec 2022 the complainant ‘tried out’ the position and payment was made of €374 on 22/12/22, and Payment of €255 on 26/01/23. The respondent’s intention was to bring the complainant into an introduction period prior to commencement of the homecare tender to ensure the business was in the best possible position to commence services. She was given an opportunity to ‘trial’ the role in order to make a decision on whether she wanted to join the team and subsequently did decide to join the respondent.
On 28/03/23 the Complainant commenced full time employment as ‘Care Manager’: and on 18/08/23 a new contract as a ‘Home Care Manager’ on a part time basis was agreed with the complainant following a meeting with Mr. Doyle. In the course of her employment the complainant did not invoke the grievance procedure nor raise any issues of a disability nature with the respondent, either with Mr Cregan or Mr Doyle. Separately, the complainant struggled with the role and was given every support that could be provided. On 27/07/23 there was a meeting with the complainant regarding use of inappropriate language towards service users. There was a meeting on 01/08/2023 with the Complainant and Mr Doyle regarding the circumstances when she left her place of work citing ‘stressed’. There was an appraisal of the complainant on 10/08/2023 and on 11/09/23 the Complainant resigned and referred her case to the WRC on 19/02/2024
Further, the Complainant has presented no evidence which demonstrates or proves the precise way she was treated any less favourably than any other in a comparable situation. It was submitted that the complainant has not discharged the burden of proof in these proceedings. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. The Complainant has failed to provide a comparator and has not been able to establish a causal link between her disability and whatever discriminatory act she claims but has not specified. She has not evidenced that because she has a disability, that she was treated adversely compared with the way her colleagues were treated.
Evidence of Mr Gary Cregan was that the complainant was interviewed and offered the job and the position was dependent on the success of the tender and the tender process was not resolved. The complainant’s purpose was to drive home care business and it was expected that with the tender she would be up and running. She was paid for hours for 22/12/2022 and not paid the following week and did not get paid for five weeks because they were awaiting on the tender and then they found out the tender process failed. He had been impressed with her as she had experience and officially she officially commenced end of March 2023. She had requested a laptop and got a contract effective March. The complainant never said before or during about her disability and there was a request for an apple phone and not a Samsung phone and there was no request for a laptop and she never raised a formal grievance. She expressed frustration in June 2023 with the role and was struggling to manage clients and further meetings were held and his role changed as he moved into a role that dealt less with operations and more finance and business.
Under cross examination he said there were irregular payments and that they closed during covid and there would not have been payment during that time and the role was dependent on tender. The complainant was paid for doing work but she was not taken on officially but was not self -employed and that in August 2023 she took on a part-time role. The complainant may have said about her arthritis and that it was noticeable but did not hinder her and would not have known it was a disability. There is a handbook in the office and he agreed there was no signed copy of the handbook but he was sure she got it. The complainant did voice her frustration with the role in July 2023. He has a good relationship with anyone and it was possible for anyone to approach him.
Evidence of Mr Kristian Doyle was he had been a nurse, worked in operations, worked with the complainant previously and that she never sought accommodation. He denied that he made fun of her disability and would not do that and he works with people with disabilities. He said he asked the complainant to refrain from calling kids “chuckies”. He offered for someone else to go out with her when she was upset and offered appraisal dates. At the appraisal it was her signature and his signature and there was an opportunity to speak about what had gone well and not gone well and she did not raise any matters.
Under cross examination he said he never gave her a copy of the handbook and that he previously worked with her, got on well with her, they had a good relationship when they started and she had advocated for him for the job and they were friendly and not friends. He denied that the incident with the mannequin and the body parts had happened. The complainant declined the offer to shadow another worker despite her not having care manager experience. He denied he mimicked her hands and said he would not do that, was reared not to be that and is a qualified nurse and that the complainant sought him to work at the respondent because of the way he does his job. The complainant had access to many people she could have spoken to if she was unhappy. He had worked with the complainant previously for over 6 years and knew of her disability and the impact it had on her.
Case law cited County Louth VEC -v- Equality Tribunal [2016) IESC 40. Cementation Skanska (formerly Kvaerner Cementation Limited) v Carroll DWT0425 Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, Salesforce.com v Leech EDA1615, Melbury Developments v Arturs Valpeters EDA0917, Southern Health Board v Mitchell [2001-ELR201], Northeastern Region v Sheridan [EDA 0820], Graham Anthony & Company Limited v Mary Margetts EDA, Olumide Smith v The Office of the Ombudsman [2020] IEHC 51, Mengozzi in Case C-415/10, Meister ECLI:EU:C:2012:8, Bus Eireann v SIPTU PTD8/2004 Donal Gillespie and Donegal Meat Processors UD/20/135.
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Findings and Conclusions: CA-00061642-001
The complainant submits that she did not receive core terms and conditions when she commenced employment on 12/12/2023 and the respondent submits that the complainant was trying out the role at that time and when she took on the role more formally she signed her terms of employment on 28/03/2023.
3.—(1) An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment
I note that the complainant was paid monies with regards to hours worked from December 2022 and Mr Cregan’s evidence was this was a trial period and her employment commenced properly in March 2023 and he also confirmed in his evidence that the complainant was not a contractor. Based on all the evidence and submissions and the work that the complainant completed for which she received payment, I find that the complainant’s employment commenced on 12/12/2023.
Terms and conditions were provided to the complainant on 28/03/2023 with an additional contract received 18/08/2023 reflecting changes in her hours of work. The WRC received her complaint on 19/02/2024.
This issue of time limits of referral of a complaint under Act, was dealt with in the case of ADJ-00030153 Denise Ryan and Smart School Accounting Limited TIA Smart School Accounting where it was determined that: - "The contravention of Section 3 of the Act is a subsisting and a continuing contravention as long as after the initial (as provided for at the time within the Act two-month period) the employee remains an employee not in possession of a statement. If no statement was provided at any stage during the employment relationship, and this came to an end, the employee could refer a complaint within six months from the last day of their employment. However, once a statement was provided during the period of employment, the time limit for submitting of the complaint is determined from the day the statement was issued to the employee. "
The complainant did not receive her terms of employment within the requisite one month but did receive her terms of employment on 28/03/2023 and later amended on 18/08/2023 and her complaint was received by the WRC on 19/02/2024. Her complaint regarding failures prior to 28/03/2023 is outside the 6 month time limit and I find no reason in which to extend that time and find that the complaint is not well founded.
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Summary of Complainant’s Case: CA-00061642-003
Preliminary Issue: The complainant submitted that earlier instances were out of time but that there was an incident of 22/08/2023 which was within time and that the complainant submitted a letter and no response was received and the person who should have dealt with it had left the office.
Substantive Issue: The complainant submits that she commenced employment with the Respondent on 12/12/2022 and handed in her notice on 11/09/2023 along with a sick certificate from her doctor, and indicated her intention to utilise the sick certificate in lieu of working the relevant notice period.
The Complainant interviewed with the Respondent on 05/12/2022 and was offered a role as Healthcare Manager by Gary Cregan of the Respondent on 09/12/2022 before commencing employment 12/12/2022 and relies upon text messages sent between the Complainant and Gary Cregan of the Respondent over the relevant period. There were initial delays in being set up owing to Covid-19 in the office of the Respondent, and due to delays in obtaining a health tender, which was, in large part, the reason for the Complainant’s employment with the Respondent.
The Complainant was paid the sum of €210.30 by the Respondent on 22/12/2022 along with €253.72 on 26/01/2023 and thereafter paid 09/03/2023 €826.44, 16/03/2023 €826.43, and 24/03/2023 €825.25. Notwithstanding her employment with the Respondent commencing on 12/12/2022 the Complainant was not provided with the information required by the Act within the time periods prescribed by same. The Complainant first received a contract on 28/03/2023 and relies upon a signed copy of same and the Respondent failed in its statutory obligations.
The complainant suffers from rheumatoid arthritis and on 22/08/2023 this visible disability which is observable at conversational distance within her hands, during her employment with the Respondent, and particularly, at a meeting involving a number of employees of the Respondent, the Complainant’s manager, Kristian Doyle, contorted his hands in an attempt to mimic the complainant’s disability and mocked her in front of her coworkers. This unwanted conduct related to the Complainant’s disability caused the Complainant considerable distress, violated her dignity, and created an intimidating and/or hostile and/or humiliating and/or offensive and/or humiliating environment for the Complainant. There was a clear nexus between the Complainant’s disability and the harassment.
The test to be considered is a subjective one and whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts. Further, the Complainant relies upon the United Nations Convention on the Rights of Persons with Disabilities, as ratified by the European Union. The Complainant further respectfully submits that she suffered harassment by an employee of the Respondent, for which the Respondent is responsible. The Complainant felt she could not engage with the relevant grievance procedure due to the nature of her relationship with her manager, to whom such a grievance would have to be reported, and in particular, where her manager was the source of the harassment in question.
The Respondent failed in its statutory obligations to provide the Complainant with the relevant terms of her employment until March 2023. Further, another employee of the Respondent, and the Complainant’s manager, harassed the Complainant with unwanted conduct which violated her dignity, and created an intimidating and/or hostile and/or humiliating and/or offensive environment for the Complainant.
The evidence of the complainant is that she applied for the position and had been a disability manager and she believed it was to be 9-5 job and her understanding was that she was home care tender. You do not just run with a tender as there is garda vetting involved and her role would involve leading a team, engaging with care givers and that is she trained to a master’s level and has worked for many years.
She did not receive anything until a contract was drawn up in February 2023 dated March 2023 and that when she started in December 2022 there was verbal communication about the hours. She was told that she would be in the office until the tender came through and there was no mention about it being a trial basis. Pay was received for December, January, and February 2023 and that she asked for terms and conditions.
She has rheumatoid arthritis and changed career from being an Industrial Engineer and had an interest in home care side of things and thought she could make a difference. With her rheumatoid arthritis she can be stiff and sore but is in remission, had surgery and uses keyboard sporadically and it did not arise with the role she applied for. In April 2023 Mr Doyle came to the organization and there had never been an issue with him and she had recommended Mr Doyle for the role. On a few occasions he mimicked the disability in her hands and when she said she needed a new computer as it was not compatible, he waved his hands and this occurred on 22/08/2023. Four people were present when this happened and do not feel comfortable giving evidence and Mr Doyle made her embarrassed and she felt vulnerable. It was the final straw as she had endured enough bullying and tried to hold her head up as they had a friendship but she had to resign and her blood pressure had risen and she was told by her doctor to take 2 weeks off work. She did not submit a grievance as she felt she was bullied and Mr Doyle was her manager and there were three incidents involving Mr Doyle and the other manager Mr Cregan had stepped back from the role.
Another incident occurred in early July when they were putting together a bed and he threw a male body part from the mannequin and she believed this was because of her health and also because she is single. The other 2 incidents were related to disability and the office was closed because of covid. She returned around 02/01/2023 and arrived at 10 am and the tender had been pushed out and Mr Cregan wanted to discuss options on 09/01/2023. She was told the tender had not passed, and because there was no work she went holidays from 10/01/2023 till 13/01/2023 and did a half hours work during that time and came into work on 19/01/2023 and did 2 hours work and there was no update on the tender. On 22/02/2023 she was advised that the Care manager for disability would not be back
Under cross examination she said she applied for the position around May/June 2022 with a cv and was interviewed with Mr Cregan and Ms Ryan. She was advised her role would be to look after home care and Ms Ryan would look after the disability area and she would look after disability if Ms Ryan was not available and started 19/12/2022. It was full time, paid into her bank account and did not work all hours at the beginning as her services were not required albeit she was available. She told Mr Cregan she was taking holidays and signed a contract on 28/03/2023 and raised grievances but not in writing. She met Gary Cregan on one occasion and there were appraisals done and she denied that she called children “chuckie” and said she 100% disputed that and was not privy to that note in which Mr Doyle is purported to have documented that and she was not given a copy of that. and she said the claim she called a child ‘chuckie’ could have been fabricated.
She had been advised there was an application for a tender and she said she did not put her disability on her application form but said it at interview and was not asked for a doctors cert and that she did not request anything from the respondent regarding her disability. She received a phone and laptop and the laptop did not work with overheads. She said she had recommended Mr Doyle for the role and he was the person who made the comments about her hands and one had been about a bed and a body part. She was told on 21/12/2023 that the office would be closed because of covid and they said that the tender had been pushed out till February and that she would be contacted on 09/01/2023 and she met Mr Cregan on 09/01/2023 and she was advised that Ms Ryan was out and that the tender had not been passed. She had a laptop and phone to work with and with no available work went on holidays on 10/01/2023, was asked to come in on 19/01/2023 and there was no further update on the tender.
The evidence of Ms Noelle Ryan was that she left the respondent in February 2023 on health grounds and due to work related stress. She had interviewed the complainant and found her a great candidate and the complainant started work for the respondent on following Monday. The complainant had wanted part-time but agreed to full time and the witness did not know what salary the complainant was offered. The complainant was told the job was Monday to Friday 9-5 and Ms Ryan left in February 2023 and had no involvement after that. The complainant covered the area of disability while the witness was out.
Under cross examination Ms Ryan confirmed that she left because of stress and that it did not end well. She said the complainant made reference to her hands during interview by explaining the surgery that she had and she was in remission and there was nothing specific said about her role and the process of the tender was quite rushed and she did not recall the complainant in the office the week of 19/12/2022 and that the interview with the complainant was informal. She received payment in a similar manner to the complainant and was paid hourly into the bank account.
Case law cited included A Worker v A Hotel [2008] ELR 73Walsh v Cedarglade DEC-E2016-132, Fag og Arbejde v Kommunernes Landsforening (C-354/13) [2015] I.R.L.R. 146,Jette Ring v Dansk almennytiggt Boligelselskab (C – 355/11) [2013] IRLR 571, Nail Zone Ltd v A Worker [EDA 1023]
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Summary of Respondent’s Case: CA-00061642-003
The complainant was employed by the Respondent as a ‘Home Care Manager’ from the 28/03/2023. Preliminary Issue: The respondent submitted that the complaint is out of time. The complaint was lodged on 19/02/2024 and on the complaint form, the Complainant states that the most recent date of discrimination was 28/02/2023. The complainant failed to submit her claim within the requisite six-month period of the last date of discrimination. No ‘reasonable cause’ was exhibited for the delay and the complainant has not advanced grounds of ‘reasonable cause’ such as would satisfy any consideration of an ‘extension’ of time. The Respondent respectfully submits that the Complainant has not named a suitable ‘comparator’ under the provisions of the Acts. This preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense’. The respondent asked to determine the jurisdictional and threshold aspects of the preliminary issues raised.
Substantive Issue: The original contract of employment of the complainant was signed by the complainant on the day she commenced as an ‘employee’ which was 28/03/2023 and her first contract included the core terms of the complainant’s employment. There were some initial shifts worked in Dec 2022 and Jan 2023 as a ‘trial’ but this was a suggestion by the respondent for the complainant to see whether the position might suit her.
Within this complaint the Complainant provides insufficient relevant details in order to ground her claims, and the Respondent submits she has failed to raise a prima facie case of discrimination. The Complainant claims discrimination by reason of disability, and failures to give ‘reasonable accommodation’ and harassment. This complaint is out of time and the complainant never raised a request nor issue regarding ‘reasonable accommodation’, a matter that the respondent was in a position to deal with had it been raised with them at the time. The complainant has failed to discharge the burden of proof. The Respondent respectfully submits that the Complainant has not proved the primary facts in order to satisfy that they are of significance and raise the presumption of discrimination. The Respondent asserts that insufficient facts have been adduced, and, the complainant never raised an issue of disability nor one of being discriminated during her employment with the respondent.
In Dec 2022 the complainant ‘tried out’ the position and payment was made of €374 on 22/12/22, and Payment of €255 on 26/01/23. The respondent’s intention was to bring the complainant into an introduction period prior to commencement of the homecare tender to ensure the business was in the best possible position to commence services. She was given an opportunity to ‘trial’ the role in order to make a decision on whether she wanted to join the team and subsequently did decide to join the respondent.
On 28/03/23 the Complainant commenced full time employment as ‘Care Manager’: and on 18/08/23 a new contract as a ‘Home Care Manager’ on a part time basis was agreed with the complainant following a meeting with Mr. Doyle. In the course of her employment the complainant did not invoke the grievance procedure nor raise any issues of a disability nature with the respondent, either with Mr Cregan or Mr Doyle. Separately, the complainant struggled with the role and was given every support that could be provided. On 27/07/23 there was a meeting with the complainant regarding use of inappropriate language towards service users. There was a meeting on 01/08/2023 with the Complainant and Mr Doyle regarding the circumstances when she left her place of work citing ‘stressed’. There was an appraisal of the complainant on 10/08/2023 and on 11/09/23 the Complainant resigned and referred her case to the WRC on 19/02/2024
Further, the Complainant has presented no evidence which demonstrates or proves the precise way she was treated any less favourably than any other in a comparable situation. It was submitted that the complainant has not discharged the burden of proof in these proceedings. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. The Complainant has failed to provide a comparator and has not been able to establish a causal link between her disability and whatever discriminatory act she claims but has not specified. She has not evidenced that because she has a disability, that she was treated adversely compared with the way her colleagues were treated.
Evidence of Mr Gary Cregan was that the complainant was interviewed and offered the job and the position was dependent on the success of the tender and the tender process was not resolved. The complainant’s purpose was to drive home care business and it was expected that with the tender she would be up and running. She was paid for hours for 22/12/2022 and not paid the following week and did not get paid for five weeks because they were awaiting on the tender and then they found out the tender process failed. He had been impressed with her as she had experience and officially she officially commenced end of March 2023. She had requested a laptop and got a contract effective March. The complainant never said before or during about her disability and there was a request for an apple phone and not a Samsung phone and there was no request for a laptop and she never raised a formal grievance. She expressed frustration in June 2023 with the role and was struggling to manage clients and further meetings were held and his role changed as he moved into a role that dealt less with operations and more finance and business.
Under cross examination he said there were irregular payments and that they closed during covid and there would not have been payment during that time and the role was dependent on tender. The complainant was paid for doing work but she was not taken on officially but was not self -employed and that in August 2023 she took on a part-time role. The complainant may have said about her arthritis and that it was noticeable but did not hinder her and would not have known it was a disability. There is a handbook in the office and he agreed there was no signed copy of the handbook but he was sure she got it. The complainant did voice her frustration with the role in July 2023. He has a good relationship with anyone and it was possible for anyone to approach him.
Evidence of Mr Kristian Doyle was he had been a nurse, worked in operations, worked with the complainant previously and that she never sought accommodation. He denied that he made fun of her disability and would not do that and he works with people with disabilities. He said he asked the complainant to refrain from calling kids “chuckies”. He offered for someone else to go out with her when she was upset and offered appraisal dates. At the appraisal it was her signature and his signature and there was an opportunity to speak about what had gone well and not gone well and she did not raise any matters.
Under cross examination he said he never gave her a copy of the handbook and that he previously worked with her, got on well with her, they had a good relationship when they started and she had advocated for him for the job and they were friendly and not friends. He denied that the incident with the mannequin and the body parts had happened. The complainant declined the offer to shadow another worker despite her not having care manager experience. He denied he mimicked her hands and said he would not do that, was reared not to be that and is a qualified nurse and that the complainant sought him to work at the respondent because of the way he does his job. The complainant had access to many people she could have spoken to if she was unhappy. He had worked with the complainant previously for over 6 years and knew of her disability and the impact it had on her.
Case law cited County Louth VEC -v- Equality Tribunal [2016) IESC 40. Cementation Skanska (formerly Kvaerner Cementation Limited) v Carroll DWT0425 Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, Salesforce.com v Leech EDA1615, Melbury Developments v Arturs Valpeters EDA0917, Southern Health Board v Mitchell [2001-ELR201], Northeastern Region v Sheridan [EDA 0820], Graham Anthony & Company Limited v Mary Margetts EDA, Olumide Smith v The Office of the Ombudsman [2020] IEHC 51, Mengozzi in Case C-415/10, Meister ECLI:EU:C:2012:8, Bus Eireann v SIPTU PTD8/2004 Donal Gillespie and Donegal Meat Processors UD/20/135.
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Findings and Conclusions: CA-00061642-003
The complainant submits that she was discriminated against by the respondent on the grounds of her rheumatoid arthritis disability, and that they failed to provide her with reasonable accommodation and mocked her disability which amounted to harassment. The respondent submits that the complainant was not harassed and did not request reasonable accommodation. Preliminary Issue : The complainant gave evidence that albeit some incidents of discrimination were outside the time limits there was an incident on 22/08/2023 which was within the time limits, whereby she was harassed and also requested reasonable accommodation for her disability by requesting a laptop. I note that the complainant raised on her complaint form that the most recent date of discrimination was 28/02/2023 and at the hearing advised that this date was submitted in error and that the last date of discrimination was the incident on 22/08/2023. The respondent submitted that a claim of discrimination of 28/02/2023 is outside the time limits, however, I note that the claim form is not a statutory form as set out in TED179Patrick Doolin v Stobart (Ireland) Driver Ltd and I do not find the respondent prejudiced and find that the submission that the most recent incident of discrimination of 22/08/2023 is within time.
Substantive Issue: Section 6 .sets out: — [(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— …(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”),
The Act provides that for Harassment and sexual harassment. 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.
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable— (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects. (3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person. (4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim’s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment. (5) In this section "employee" includes an individual who is—
(a) seeking or using any service provided by an employment agency, and (b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1), and accordingly any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility. (6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘in relation to the victim’s conditions of employment’ there were substituted ‘contrary to section 11’ or, as the case may be, section 12. (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.
The Act also sets out that [(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person’s employer. (b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability— (i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training, unless the measures would impose a disproportionate burden on the employer. (c) In determining whether the measures would impose such a burden account shall be taken, in particular, of— (i) the financial and other costs entailed, (ii) the scale and financial resources of the employer’s business, and (iii) the possibility of obtaining public funding or other assistance.
It has been set out in Section 85A(1) of the Act that “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 extent of the evidential burden imposed on a Complainant by section 85A is set out by the Labour Court in Southern Health Board v Mitchell [2001] ELR that held: “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.”
Only if these primary facts are established and regarded 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. Therefore, the complainant has to establish both primary facts upon which they rely and also that those facts are of sufficient significance to raise an inference of discrimination. As set out in Cork City Council v McCarthy EDA 21/2008: “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”
In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.
Mr Cregan MD and Mr Doyle General manager for the respondent gave evidence that they did not dispute their awareness of the complainant’s rheumatoid arthritis. It was not in dispute that there was a meeting on 22/08/2023 when the complainant mentioned a laptop to Mr Doyle. It was in dispute that Mr Doyle in a gesture mimicked the complainant’s hands which it was submitted was harassment because of the complainant’s disability. I note that the complainant did not raise any grievance either formally or informally after the event and while noting that she may not have received a handbook containing the formal grievance procedure, the complainant had been able to express in an email to Mr Doyle on 22/07/2023 concerns that she was going home saying “I am stressed”. She also did not refer to the matter regarding the harassment in her letter of resignation.
The complainant further submits that she requested reasonable accommodation with a laptop but her evidence was that the request for a laptop was owing to compatibility issues and I do not find any suggestion that the laptop request was a request for reasonable accommodation to her disability. Her evidence also was that she could use the keyboard sporadically and it was not an issue for the role that she applied for. At times the evidence of Mr Doyle and the complainant lacked the detail that might have been expected which brings into questions the credibility of some of the evidence of both witnesses.
Both the complainant and Mr Doyle had worked together previously and while there appeared to have been certainly at the start of the working relationship with the named respondent a good professional relationship, it would appear that for whatever reason this deteriorated. I further note that at time both Mr Doyle and the complainant’s evidence appeared evasive and taking into consideration all the circumstances of the complainant and the evidence, the burden is with the complainant to establish a prima facie case of discrimination and in all the circumstances I find that the complainant has not established a prima facie case of discrimination and the complainant was not discriminated against and was not harassed and there was no failure to provide reasonable accommodation on the grounds of disability and the claim is therefore, not well founded and I dismiss the complaint. |
Summary of Complainant’s Case: CA-00061642-004
This complaint was withdrawn. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
CA-00061642-001 I find that the complaint is not well founded. CA-00061642-003 I find that the complainant has not established a prima facie case of discrimination and the complainant was not discriminated against and was not harassed and there was no failure to provide reasonable accommodation on the grounds of disability and the claim is therefore, not well founded and I dismiss the complaint. |
Dated: 1st September 2025.
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Harassment, disability, terms of employment, reasonable accommodation. |