Garda claims her promotion to sergeant has been held up due to her medical conditions
• Yesterday 19:24
A Garda who claims her promotion to sergeant has been held up for years because of her medical conditions says the force should either get on with advancing her career or pay “substantial compensation” for discrimination.
The force says it cannot accommodate Garda Jacinta Kenny at the higher rank because she has to work from home on foot of medical advice which said she was “effective for a significantly reduced profile of policing work”.
At the Workplace Relations Commission, lawyers for the state failed in a bid to have the press kept out of the hearing room for Gda Kenny’s claim under the Employment Equality Act 1998.
State barrister Desmond Ryan BL said an “extraordinarily unusual factual matrix” and “medical context” required the case, which opened on Friday, to be heard in private. This suggestion was rejected by Gda Kenny’s representative, who said she was “quite happy” to have the matter heard in open session.
Gda Kenny told the tribunal she suffers from status migraines and impeded swallowing which could require her to use a feeding tube in future – along with mental health conditions including borderline personality disorder, generalised anxiety disorder and agoraphobia.
“If it is your recommendation that she should be promoted and An Garda Siochána, in its wisdom, decides not to, we ask that she be awarded substantial compensation,” said Gda Kenny’s representative, Joe Bolger of HR firm ESA Consultants, opening the case.
“This is complete discrimination, and a message has to be sent out in a strong manner that they cannot discriminate in this way,” Mr Bolger said.
“I left a job with a higher salary to enter An Garda Síochána because I thought more it would be more interesting work,” said Gda Kenny.
She told the tribunal she had been a waste enforcement officer with a background in biological science prior to her 16 years in the force.
She said she first put in for a promotion to sergeant in 2017, believing that her non-frontline status was never raised as an “an issue” by her superintendent – and thinking there would be no difficulty as her sergeant at that time and two previous sergeants had been office-based.
After getting on the promotion list in 2019, Gda Kenny said she was informed by a superintendent that all of the promotional openings were to be “frontline” – and that when she said she couldn’t take any of them because of her conditions, the senior officer replied: “I don’t know, I’m letting you know by way of courtesy.”
Later, she said she got an official phone call from an individual in a management position stating that her promotion was “being held up because of medical grounds” and that the Garda Commissioner was waiting for a report from the force’s chief medical officer about her.
However, when she went to a medical assessor that year she was told the office of the garda chief medical officer had “no role in promotions”, that no report had been sought, and she was directed to speak to a disability officer about reasonable accommodation.
When the disability officer told her she only dealt with civilian staff, she then wrote to Garda HR, from whom she said she “never” got a response.
“I know there were people on the list behind me promoted – people were promoted all the time. People asked me all the time,” she said.
“I feel I’ve been caught in the doldrums – I’m in my 50s, coming to the end of my career. I’d like to be further ahead,” she said. “I just feel a little bit duped. If I’d known this is how I’d be treated, would I have chosen this career path?”
Adjudicating officer Kevin Baneham asked her: “Are you happy to outline the reasons for accommodation?”
Gda Kenny said: “So, I have borderline personality disorder. It affects you day to day, it affects you in interactions with people and situations. Your emotions can slide from high to low very quickly and remain at a level for a long period.”
Gda Kenny added that she had been diagnosed with generalised anxiety disorder and agoraphobia – the fear of open spaces. She said she was also suffering from physical ailments including status migraines and ineffective oesophageal mobility, leading to failed swallows, choking and vomiting – the latter being “the one that means I’m working from home at the minute”.
Des Ryan BL, appearing for An Garda Síochána instructed by Lorraine Williams of the Chief State Solicitor’s Office, said it would be “somewhat grotesque” to subject Gda Kenny to “extensive cross-examination” on the medical points, which he said he was addressing in a legal submission handed to the adjudicator.
He put it to Gda Kenny that her inclusion on the sergeant panel gave her the status of “eligible for consideration, not promotion” – but that the ultimate decision rests with the Garda Commissioner.
The Garda chief medical officer, Dr Oghenovo Oghuvbu, gave evidence that his office had found that Gda Kenny was fit for “non-confrontational duties” only.
“Working from home allows Gda Kenny remain effective, albeit in a significantly reduced profile of policing work,” an occupational health assessment submitted in evidence recorded.
Dr Oghuvbu said his office could only make medical assessments, and it was for Gda Kenny’s superiors to determine what policing duties she could perform.
“He never asked me what I was working at,” Gda Kenny said of the assistant chief medical officer who assessed her when the report was put to her under cross-examination. She said the project she was working on fulltime was was “integral to policing work”.
“I think ‘reduced’ is a difficult word to use. I think ‘different’ is the word. No, I don’t agree with ‘reduced profile of policing work’, I don’t agree with that term,” she added.
Yvonne Cooke, the acting executive director of HR and people development in the force – was asked by Mr Ryan how often working from home arises in policing.
“It doesn’t. This is a unique case,” she said, calling it “challenging” to make a reasonable accommodation at a higher rank, as the force needed as many of its sergeants “deployable” to frontline service.
The case was adjourned to a future date, yet to be set by the WRC, when it is expected to take the evidence of Garda human resources head, Chief Superintendent Denis Ferry.
The tribunal also gave a direction that the names of certain gardaí and civilian staff mentioned in proceedings not be used in press reports.