Case Number: ADJ-00015842. Workplace Relations Commission.

• Docket Number: ADJ-00015842
• Hearing Date: 01 July 2019
• Date: 01 August 2020
• Year: 2020
• Court: Workplace Relations Commission

ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00015842

Parties:

	Complainant	Respondent
Anonymised Parties	A Holistic Therapist	A Provider of Holistic Therapy

	Complainant	Respondent
Representative	None	None

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00020443-001	09/07/2018
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00020443-004	09/07/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00020443-006	09/07/2018

Date of Adjudication Hearing: 01/07/2019

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 9th July 2018, the complainant referred five complaints pursuant to the European Communities (Protection of Employees on Transfer of Undertaking) Regulations (the ‘TUPE Regulations’) as well as complaints pursuant to the Employment Equality Act and the Unfair Dismissals Act. They were registered and assigned references CA-00020443-001 to 007. The Employment Equality Act complaint cited discrimination on grounds of disability, victimisation, dismissal for opposing discrimination, harassment and the ‘other’ category.

By letter of the 23rd July 2018, the Workplace Relations Commission wrote to the complainant to say that she had lodged complaints of both unfair dismissal and discriminatory dismissal. The Commission proposed that it would apply section 101(4)(A) to deem the ‘Employment Equality’ complaint withdrawn unless she withdrew the unfair dismissal complaint. The complainant was asked to elect between the unfair dismissal and the Employment Equality complaints. By email of the 23rd August 2018, the complainant indicated that she wished to withdraw the Unfair Dismissal complaint (CA-00020443-007).

The CA-00020443 complaints were constituted as two ADJ files: ADJ-00015840 and ADJ-00015842. ADJ-00015840 address CA-00020443-002, 003 and 005 and are against the transferor, referred to as ‘the respondent director’. ADJ-00015842 addresses CA-00020443-001, 004 and 006 against the transferee, the limited company, referred to as ‘the respondent’.

On the 5th April 2018, the complainant emailed the Workplace Relations Commission with an outline her situation, referencing the Equality Act. This was registered as a complaint and assigned reference CA-00018351 and associated with ADJ-00015480.

In accordance with section 41 of the Workplace Relations Act 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.

Background:

The complainant began working for the respondent on the 1st October 2008. She was paid €19 per hour and the schedule for 2017 showed that she worked on average 11.5 hours per week. The complainant asserts that there were contraventions of the TUPE Regulations following the transfer of undertaking on the 3rd July 2017. She asserts that there was discrimination on the disability ground and victimisation. The respondent asserts that the complainant was not an employee and not entitled to bring these complaints. It strongly denied the allegations of discrimination and victimisation.

Summary of Complainant’s Case:

In respect of the TUPE complaints, the complainant outlined that the transfer of undertaking took place on 3rd July 2017, but she was only notified of this on the 11th July 2017. She was not given the required 30 days’ notice of the transfer of undertaking. The transfer was incorporation from a trading name to a limited company. The complainant said that she did not sign the contract after the transfer as there was a SCOPE investigation underway. SCOPE determined on the 26th April 2018 that she was in insurable employment. The complainant outlined the meeting of the 17th October 2017 was called after the complainant obtained advice at a FLAC clinic; this advice was that she was employed and not self-employed. She met with the respondent, who was accompanied by a HR consultant. At the meeting, the complainant asked about becoming an employee. The respondent refused and also refused to re-negotiate the contract. At the meeting, the respondent stated that therapists who were mobile (i.e. could drive) were to be given priority. This was the first time that any such priority would be given to mobile therapists. The respondent did not explain the reasoning for this decision. The complainant said that she could not drive because of epilepsy. The complainant mentioned this at the meeting and also that she needed some time off as she has Stage 4 endometriosis. The meeting then turned to the terms of employment and the respondent offered a lower rate of pay. The complainant said that a new recruit in 2014 was paid €14 but the complainant was now being offered €13 per hour. The complainant said that she should retain the same rate of pay of €19 per hour. After the meeting, the complainant was made offers of self-employment or employment with lower rates of pay and a sick pay provision (as set out in the HR...