Ogle loses disability discrimination claim against Unite

Brendan Ogle has lost his disability discrimination claim against trade union Unite after a tribunal accepted that changes to his position were not related to his status as a cancer survivor.

The Workplace Relations Commission (WRC) rejected claims that another union official told Mr Ogle he had been directed to write him out of the union's strategic plan for Ireland, a plan which he then proceeded to write up on a whiteboard.

Mr Ogle's account of the meeting had been likened to a scene with a "Bond villain" by one of the union's lawyers - and was rejected as not being "plausible" by an adjudicator as the tribunal dismissed Mr Ogle's complaint under the Employment Equality Act 1998.

It follows a series of ten hearings between November 2023 and June 2024 at Lansdowne House in Dublin, which heard evidence from a dozen witnesses, including the complainant.

Mr Ogle's case was that he was sidelined when he went back to work in the summer of 2022 after being treated for a "very aggressive" throat cancer which saw him lose four and a half stone in weight while "living off fluids for six months".

The long-standing official had accused the trade union of a failure to provide reasonable accommodation, victimisation and harassment following his return to work as Senior Officer.

His barrister, Mary-Paula Guinness BL, had argued her client had a senior role dealing with political affairs before falling ill, a position which Mr Ogle contended had been "literally decimated" on his return. Unite insisted the claims were "entirely artificial".

A central dispute in the case was over a meeting on 24 August 2022 between Mr Ogle and another senior official in Unite's Dublin office he claimed had taken over his political officer duties, Tom Fitzgerald - which became known in the course of the hearings as "the whiteboard meeting".

Mr Ogle alleged Mr Fitzgerald had told him that the union's new general secretary, Sharon Graham, wanted a new strategy for the Republic of Ireland drawn up, and that she had made a "directive" that Mr Ogle was not to be in it.

Cross-examining Mr Ogle at the end of February on behalf of the union, senior counsel Mark Harty said: "Your evidence is that he was told to get you out of Unite, and put it all on a whiteboard, like a Bond villain."

Mr Ogle's evidence was that he had backed another candidate publicly when Ms Graham stood for election as Unite's general secretary, while Mr Fitzgerald had been a supporter of Ms Graham.

He said the union's former chief of staff, Gail Cartmail, had told him: "Sharon operates on the basis of loyalty" - and that the general secretary "was very supportive to officers who supported her, and gave broad discretion to how those officers used her office and name to get the job done".

"Your honestly-held belief is that a wide discretion has been given to Tom Fitzgerald," Mr Harty asked the complainant during cross-examination.

"That's my honestly-held belief," Mr Ogle said.

"Why do you say Tom Fitzgerald has used this discretion to force you out?" Mr Harty said.

"I don't know. It's the source of the gravest disappointment to me, given our history, and what I had considered friendship," he said.

Mr Fitzgerald's evidence was: "I didn’t say that. I absolutely didn't say that. I've wracked my brains trying to think why Brendan would say that - I can't understand that … Sharon Graham never said that to me, and I've never said it to Brendan," he said.

Ms Cartmail's answer to the allegation when it was put to her was: "I didn't say that and it isn't true, and anybody that knows the general secretary, Sharon Graham, will know that she is absolutely opposed to nepotism."

The WRC heard that Mr Ogle issued defamation proceedings against Unite's former chairman Tony Woodhouse over remarks at a union conference in Malahide in September 2022 referring to "lies that were being told" about Unite on social media.

Mr Ogle's wife, Mandy La Combre, gave evidence that she posted on Facebook earlier that month about her husband's situation at work following comments on social media by local authority water workers who she said were were upset that he was "silent" about an industrial agreement they opposed.

Her husband had told her he was "not being included in this" and "taken out of that", Ms La Combre said, adding: "you'd expect better" of a trade union job.

"You see your partner suffering through cancer, four and a half stone lighter, liquidating food and feeding them, thinking they're going to die - it was very traumatising for us as a couple," she said.

John Douglas, the former general secretary of the Mandate trade union who represented Mr Ogle in an internal grievance process, said in April that senior Unite officials wanted to "do a deal" with Mr Ogle on an exit package so that he would not pursue a promotion to the role of Republic of Ireland regional secretary. The union's position was that the talks had been on a without prejudice basis.

Mr Ogle said that when he went to a November 2022 job interview in London he objected to Mr Woodhouse chairing an interview panel in the circumstances - and wrote in March 2023 to the union's executive stating that chairman had "targeted - and following advice I can state defamed me - at the biennial conference". He did not succeed in the competition, the tribunal heard.

The tribunal heard that by the spring of 2023, Mr Ogle and Mr Fitzgerald were exchanging correspondence in which Mr Ogle claimed his colleague was trying to "take" his job, while Mr Fitzgerald called the allegation "offensive, underhanded and absurd".

Claim papers were lodged in May last year and first came before the WRC in November 2023, when elements of the case under whistleblower protection laws were dropped by Mr Ogle.

The adjudicator, Elizabeth Spelman, has issued her ruling on the case in writing to the parties, rejecting the equality complaint in its entirety in a decision document extending to over 70 pages.

She accepted that after Ms Graham's election, Unite "changed its emphasis from political matters to industrial matters". This had a "significant impact" on Mr Ogle, as his duties were "primarily political", she wrote.

She said the change was applied across Unite and was "unconnected to [Mr Ogle] or his disability".

Ms Spelman said there was a "straight conflict of evidence" between Mr Ogle and Mr Fitzgerald about the "whiteboard meeting" in August 2022, but that she preferred Mr Fitzgerald's version of events over Mr Ogle's.

Mr Ogle had initially stated that his colleague was acting on the "direction" of the Unite general secretary, Ms Graham, before then stating that Mr Fitzgerald "used his own discretion", the adjudicator noted, calling it a "clear shift" in evidence, the adjudicator noted.

No-one had been identified on the whiteboard diagram shown to the tribunal, Ms Spelman wrote – and Mr Ogle's follow-up email made no mention of being "pushed out" - rather, it thanked Mr Fitzgerald, the adjudicator noted.

"I do not find it plausible that after Mr Fitzgerald and the complainant spent some time discussing deeply personal matters, Mr Fitzgerald would then tell the complainant, a long-time colleague, that he was being excluded [and] that he would then map out this plan on a whiteboard," Ms Spelman wrote.

She also rejected the claim that Mr Fitzgerald had been given Mr Ogle's political duties.

The evidence was that other duties Mr Ogle had argued were removed from him were "minor tasks which did not take much time".

Ms Spelman concluded that Mr Ogle "was not discriminated against on the ground of disability, in any way as alleged", and that Unite "did not treat [him] unlawfully" - rejecting the complaint under the Employment Equality Act 1998.

Mary-Paula Guinness BL appeared for Mr Ogle, instructed by Peter Murphy of McInnes Dunne Murphy LLP. Mr Harty represented the trade union with Barra Faughnan BL, instructed by Karyn Harty, Lesley Caplin and Tiernan Nix of Dentons Ireland LLP.