In Georgina O’Driscoll v Daffodil Care Services Unlimited Company (ADJ-00040760) the Complainant...

In Georgina O’Driscoll v Daffodil Care Services Unlimited Company (ADJ-00040760) the Complainant claimed that she was discriminated against in the context of an investigation and disciplinary process into misconduct allegations. Her complaint was unsuccessful.

Facts: The Complainant was employed as a social care worker with the Respondent from April 2021 until she resigned in October 2022. The Respondent is a private social care provider which provides residential and therapeutic childcare services for children between 12 and 17 years of age. During her employment with the Respondent, the Complainant was assigned to work in a house with three young people. In January 2022, one of the boys in that house reported to the manager that he had heard the Complainant and another employee of the Respondent, Mr Andrew Loughran, having sex during an overnight shift. He also reported an incident in which he said that the Complainant was driving while using her mobile phone and that when she was stopped by a Garda, she was argumentative with the Garda.

The Complainant and Mr Loughran were suspended without pay pending the outcome of a disciplinary investigation. The Complainant complained that it was unlawful to suspend her without pay and the Respondent obtained legal advice on this point and changed its disciplinary procedure which, up until then, had provided for suspension without pay. The Complainant was reinstated on the payroll and reimbursed for loss of wages although there was considerable delay in doing so.

A disciplinary investigation was carried out. The young person’s allegation regarding the Complainant having sex with a colleague at work was not upheld on the basis that there was insufficient evidence. The Complainant was issued with a written warning for using her mobile phone while driving.

In April 2022, the Complainant and Mr Loughran lodged grievances in respect of the Respondent’s management of the investigation into the young person’s complaint. Ms Sarah Daly BL was appointed as an external party to investigate the grievance.

On 27th July 2022, before a final report had been issued, the Complainant lodged a complaint with the Workplace Relations Commission (“WRC”). Her complaint was that during the investigation into the allegation of misconduct, and during the grievance investigation, as a heterosexual, she was treated less favourably than a homosexual colleague. She also claimed that she was discriminated against on the grounds of gender and family status as a single parent.

Ms Daly’s report final report issued on 9th August 2022. She upheld certain aspects of the Complainant’s grievances, but most of her complaints were not upheld. Ms Daly found that there had been some unfair treatment, including the Complainant’s suspension without pay which she found was a disciplinary sanction. She also found that the Complainant ought to have been given more time to prepare for the disciplinary investigation meeting on 1st February 2022 and that the Respondent should have reminded her that she was entitled to be accompanied by a trade union representative.

Decision: The Adjudicator, Catherine Byrne, gave detailed consideration of each of the aspects of the Complainant’s complaint under the Employment Equality Acts, as set out below.

The Complainant argued that the Respondent failed to address her claims to management about sexual harassment and “sexually driven” conversations on the part of CD. The Adjudicator noted that the Complainant was a qualified social care worker and mother of teenagers. She referred to the fact that the Complainant had worked in the same house as CD for six months without having reported any concerns about his allegedly sexualised conduct working with young people and without reporting any concerns that she was being sexually harassed by his behaviour. The Adjudicator described this as being “fatal” to her sexual harassment complaint.

“As she did not report any allegations of sexualised conduct on the part of CD to the management, there is no basis to her assertion that the respondent failed to address that alleged misconduct.”

The Complainant complained about the manner in which she was questioned during the disciplinary investigation meeting on 1st February 2022. She claimed that she was asked very intrusive sexual questions that went beyond the scope of the complaint that was being investigated. The Adjudicator accepted that the disciplinary investigation meeting was likely to have been stressful and embarrassing for the Complainant. The Adjudicator noted that the Complainant was aware of the allegation by the young person that she had been heard having sex with Mr Loughran during an overnight shift. The Adjudicator noted that the managers had, through their questioning, been trying to establish if the Complainant and Mr Loughran were in a sexual relationship to establish if there was any substance to the allegation. She found that it was “logical” that their questions were focused on the possibility that the Complainant and Mr Loughran were in a sexual relationship which was carried into the workplace.

The Adjudicator referred to the definition of sexual harassment, noting that it was the Complainant’s position that the questions were unwanted “verbal conduct of a sexual nature” which had the effect of humiliating her. However, the Adjudicator referred to the nature of the allegation against the Complainant and found that:

“It would have been impossible for the managers to carry out an investigation without causing some embarrassment and humiliation for the complainant.”

The Adjudicator was satisfied that the questions put to the Complainant at the meeting were “necessary and reasonable”.

The Adjudicator concluded as follows:

“While I accept that the questions were unwanted, it is my view that the pairing of ‘unwanted verbal conduct of a sexual nature’ with ‘unwanted embarrassing questions about sexual activity with a work colleague’ is not reasonable and that the actions of the respondent’s managers at the meeting on February 1st 2022 are not encompassed by the meaning of harassment or sexual harassment.”

The Adjudicator accepted that the Complainant was very distressed to have been involved in an investigation of a child protection nature and she referred to the Complainant’s evidence as to the effect this had on her family.

However, the Adjudicator was satisfied that the Complainant’s status as a parent had no bearing on how the investigation was carried out, and she found that her allegation of discrimination on this ground was misconceived.

The Adjudicator pointed out that, at the time the Complainant was suspended without pay, it had been the Respondent’s policy to suspend employees without pay pending the outcome of a disciplinary investigation. This policy changed in March 2022, on foot of advice received by the Respondent that the policy was unfair. The Complainant’s pay was later restored, but there was no proper explanation provided for the Respondent’s delay in doing so. There was also no explanation for why Mr Loughran’s pay was restored in March 2022 while the restoration of her pay was delayed.

The Adjudicator was satisfied that the suspension of the Complainant without pay in January 2022 was “disproportionate and unfair”, but found no basis that her suspension without pay was because she is a heterosexual female.

“It is apparent to me that, anyone finding themselves the subject of a disciplinary investigation after February 2022 would have been suspended with pay.”

The Adjudicator referred to the chronology of events, noting as follows:

The Adjudicator concluded that the decision to suspend the Complainant without pay was “an error which was rectified, albeit too late to avoid considerable hardship for her.” She found no evidence to suggest that her suspension without pay was in response to the suggestion that the Complainant may have been discriminated against.

The Adjudicator decided that the Complainant had not established facts from which an inference could be drawn that she was discriminated against on the grounds of gender, sexual orientation or family status. Therefore, the burden of proving that discrimination did not occur did not shift to the Respondent. She found that her complaints that she was harassed, sexually harassed and victimised were misconceived. The complaint was not well founded.

Takeaway for Employers: Although in this case the Adjudicator found that there was no sexual harassment arising from the sexually intrusive questions put to the Complainant during the disciplinary investigation meeting, employers should note that this decision was based on the specific facts at hand which involved an allegation that the Complainant had been heard having sex with a colleague during a shift. In different circumstances, similar questioning would likely result in a different finding. Another point to note from this case is that suspension without pay will be regarded as a disciplinary sanction. Where an employer suspends an employee pending the outcome of a disciplinary sanction, the employee should be suspended on pay. In this case, the Respondent amended its policy upon receipt of legal advice, and the Complainant was reimbursed the money due to her. It is advisable for employers to receive legal advice when contemplating suspending an employee during a disciplinary investigation as there are a number of legal considerations to bear in mind even when an employee is suspended on full pay.

Link - https://www.workplacerelations.ie/en/cases/2024/june/adj-00040760.html

Author – Jenny Wakely