ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044997
Parties:
| Complainant | Respondent |
Parties | John Gleeson | Property Registration Authority |
| Complainant | Respondent |
Anonymised Parties |
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Representatives |
| Dylan West B.L., Jennifer Murray, Chief State Solicitor. |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00055722-001 | 26/03/2023 |
Date of Adjudication Hearing: 23/01/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the Complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral of this matter, by the said Director General, to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the sworn oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing (and opened up in the course of the hearing).
In general terms, an Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. Section 77(5) of the Employment Equality Act states:-
“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”
In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. This will not exceed a twelve-month period.
Where a person believes they have been discriminated against on one of the nine recognised grounds or in any other way has been treated unlawfully under the Employment Equality Acts they must write to the party that they believe has treated them unlawfully using the EE2 form asking for relevant information to determine their course of action. The proposed Respondent may reply by way of form EE3. No issue has arisen regarding this obligation.
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in his Workplace Relations Complaint Form dated the 26the of March 2023) seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his disability (as detailed in Section 6 of the 1998 Act (as amended)). The Unlawful behaviour complained of includes failing to give reasonable accommodation for a disability, discrimination, victimisation, and harassment.
The Operative Section is Section 6 of the Employment Equality Act 1998 where: -
Sub Section (1) For the purpose of this Act…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) (referred to as the “discriminatory grounds”) …
Sub Section (2) As between any 2 persons, the discriminatory grounds ...are…
(g) That one is a person with a disability and the other is not or is a person with a different disability (the “disability ground”) …
The nature and extent of the Employer’s obligations, including the employer’s obligation to provide reasonable accommodation for an employee with a disability is governed by section 16 of the Employment Equality Act 1998 (the “1998 Act”)
Section 16(1), (2) and (3) provide as follows:
- (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
(2) In relation to—
(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,
(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and
(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,
subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.
(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 —
- (iv) the financial and other costs entailed,
- (v) the scale and financial resources of the employer’s business, and
- (vi) the possibility of obtaining public funding or other assistance.
(4) In subsection (3)—
‘appropriate measures’, in relation to a person with a disability —
(a) means effective and practical measures, where needed in a particular case, to adapt the employer’ s place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.
In the event that the Complainant is successful, it is open to me to make an award of compensation for the effects of the acts of discrimination and/or of the victimisation and harassment etc. I can also give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act). My remit includes re-instatement or re-engagement.
Section 85(A) of the Employment Equality Acts of 1998 to 2004 sets out the burden of proof which applies to claims of discrimination. In the first instance, the Complainant himself must establish facts which show that he suffered discriminatory treatment. It is only when these facts have been established that the onus shifts to the Respondent to rebut any inference of discrimination that has been raised. The inference must be such that the Complainant has established a Prima Facie case that he has been treated less favourably than another person is, has been or would have been treated in a comparable situation on one of the recognised grounds of discrimination which in this instance is the “disability ground”.
Prima Facie evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.
The Labour Court’s approach to this issue and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):
“..the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court 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.”
Once the Prima Facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.
In Nevins, Murphy & Flood v Portroe Stevedores (EDA 051) the Labour Court held in adopting the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite:-
“That since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden…. mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution”.
The Adjudicator must therefore determine if the explanation provided by the respondent is adequate to discharge the burden of proof that the protected characteristic was not a factor in the treatment complained of by the Complainant.
In addition to this, the Complainant has said that he has also suffered victimisation in the workplace. Victimisation is defined in Section 74(2)of the Act –
“as adverse treatment of an employee by his or her employer” as a reaction to a complaint of discrimination having been made by the employee to the employer.
The Acts specifically protect a person against dismissal or other adverse treatment by their employer because they have made a complaint to their employer about possible discrimination or taken proceedings under the Equality Legislation or opposed by lawful means an act which is unlawful under these Acts etc. Penalising a person for any of these reasons is defined as victimisation. The Acts provide for complaints about victimisation to be made to the Workplace Relations Commission in the same away as for complaints of discrimination and with the same provision for redress. Per Section 74 of the Act.
The Complainant has also, he says, been harassed in the workplace. Harassment is described in Section 14(A)(7)(i) of the Acts –
“.. any form of unwanted conduct related to any of the discriminatory grounds” which “has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person.”
Harassment constitutes discrimination by the Victim’s Employer in relation to the victim’s conditions of work. There is an obligation on the Employer to take reasonable steps to prevent it.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. The specific details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 26th of March 2023. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form which he had submitted. The Complainant thereafter gave oral evidence additional to that which he had already set out in the complaint form. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that he was discriminated against by his Employer who, he says, failed to make accommodation for a disability which had become more acute by reason of the working environment created by the Employer. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. At the outset, the Complainant raised the possibility of also bringing a claim under the Industrial Relations machinery. This option was rejected by the Respondent as it was not in a position to meet a new claim about which it had no prior knowledge. I was not disposed to add a claim/dispute at such a later stage in the proceedings.
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Summary of Respondent’s Case:
The Respondent entity was represented by a full legal team, and I was provided with a comprehensive submission dated January 2024. I have additionally heard from a number of witnesses for and on behalf of the Respondent. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent witnesses were questioned by the Complainant. The Respondent rejects that it has discriminated against the Complainant and asserts that the Complainant failed to provide the Employer with the medical information it required to address the issues and concerns being raised by the Complainant. The Respondent indicated that it’s appropriate name is Tailte Eireann following on from an amalgamation of a few Government bodies in and around 2022. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence herein. The Complainant came to work for the Respondent body in and around May of 2019. The Complainant was taken on as a clerical officer and was, as I understand it, involved in archiving and filing and photocopying documents held by the old Land Registry or Registry of Deeds. There seems to be no doubt that the complainant was physically handling old and very old files. There is a heavy reliance of Employees being present to work in this paper based office. At the start of the Covid pandemic the Complainant along with all his colleagues was sent home. However, his place of work was quickly deemed an essential service and the complainant was back into the workplace in and around August 2020. The Respondent witnesses gave evidence of the measures the Respondent took to comply with social distancing and to avoid cross contamination. In the Complainant’s case he was working in an office of three people working at an acceptable distance. Windows were kept open. The Employer, I understand, put a photocopying machine into the room which was intended to be used by the three persons and not by others. The Complainant gave evidence that he was seated close to the photocopying machine, and this caused problems for him. The Complainant says that he had since the age of sixteen always suffered with migraine headaches but that their intensity and frequency were caused to be ramped up by this proximity to the photocopier. The Complainant says that the heat and possibly the light emanating form the machine had the effect of triggering the worst migraines he had ever experienced. The Complainant says that the migraines were acute and were often accompanied by violent vomiting. I note that in July of 2020 the Complainant was out of work for two days because of headache/ migraine. He was out for five days in September 2020 and another two days in December 2020. A total of nine days. In 2021 the Complainant was out on Migraine related sick leave for two days in February and for three days in June. Thereafter the Complainant was out with stress for six weeks from the 7th of July to the 17th of August. The Complainant says that the stress was brought by the failure of Management to accept that the complainant was suffering with debilitating migraines and failing to make provision for that fact within the workplace. The Complainant says he repeatedly raised the issue with his Employer through communications with his Line Managers. I accept that he did do this, but I would not accept that this Employer did little or nothing by way of response. A not inconsiderable amount of correspondence was opened to me in this regard. For example, by the end of June 2021 (that is before the extended absence of 42 days) the Complainant was in touch with both his line Manager and the Disability liaison Officer and the Complainant had been offered the potential of an alternative office environment within the Tailte group of buildings. The Complainant declined this offer outright. From the notes taken of the conversation held, it is clear that the complainant was looking to work remotely from home. It had however been clearly explained to the Complainant that remote working was not available in this particular office which relied so heavily on working withphysical documents. I find the decision not to look at an alternative office within the Tailte group somewhat hasty in the circumstances. The Complainant started to look at the option of transferring to another Department and was advised that this was possible if he applied in the ordinary way under the Civil Service Mobility scheme. The Complainant seemed to think that the Disability Liaison Officer and/or his Line Managers should be able to by-pass the Mobility scheme as his circumstances made a move more pressing. This was not something they could facilitate as such moves need to be open and transparently done through competition etc. However, in consideration of the fact that the Complainant was stating that some accommodation was required by reason of his ongoing health issues, the Liaison Officer did accept the need to obtain the authority to provide reasonable accommodation. The Disability Liaison Officer indicated by email on the 8th of July 2021 that if the Complainant wanted – “To obtain work place accommodations a Workplace Accommodation Form needed to submitted… Part 1 to be completed by yourself and Part 2 is completed by a Consultant/Specialist I am satisfied that it was made absolutely clear to the Complainant that every effort would be made to assist and accommodate the complainant once this form had been completed and returned. In the remaining fourteen months of his employment, the Complainant never complied with this request. I do not think it is either unusual or disrespectful that an Employer would look for some authoritative evidence of a diagnosis. This is not intended to be intrusive as is alleged by the Complainant. It is a necessary part of the “reasonable accommodation” jigsaw, to help the Employer to understand what the Employer needs to do in response to a medical condition. It must be noted that when the Complainant was asked to complete the Workplace Accommodation Form, the Employer was relying on the Complainant’s assertion that he was suffering with debilitating migraines being brought on by the office environment. The Employer had no specialist information on the nature of the Complainant’s condition. The Employer did not know what was causing the migraines and what the symptoms were. The Employer had no sense of what steps it could and should take to avoid the known triggers or what remedies the Complainant himself could and should take in terms of pain killing medication and/or other preventative measures. The Respondent had no sense of what investigations had been conducted such as a CT scanning or MRI scans. In fact, it seems that the diagnosis of migraine has been made in the case of the Complainant without him ever having been seen by a Neurologist – the recognised specialist in the field. I do not mean to criticise the Complainant in this regard as it seems his G.P was confident that he suffered with migraine, and it was his G.P who had repeatedly certified him migraine and headache. The Complainant says he could not afford a consultant/specialist report in this regard, though he says that his G.P. referred him on through the public list. After nearly three years the Complainant has not, even as of the WRC hearing date, been seen by a Neurologist. I do not understand why the Complainant, at the very least, did not provide the Respondent with a medical report from his G.P. setting out the history, investigation and diagnosis as conducted by the G.P. together with confirmation that the Complainant had been referred forward for the Specialist investigation. Even if such a report does not satisfy the demand for consultant’s report specified in the Workplace Accommodation Form such a report would at least give the Employer a starting point. Unfortunately, the Complainant did not provide the Employer with anything which might verify the nature and extent of the Complainant’s condition and from which they might usefully understand what they could do to accommodate him. As previously noted, the Complainant went out sick a couple of weeks later on an extended period of sick leave certified by his G.P suffering with stress and anxiety and migraine. This lasted until August of 2021. For the purposes of clarity, I should say that I fully accepted that the Complainant was suffering with debilitating headaches which were causing him to miss days at work. I would further state that the Respondent witnesses all accepted that the complainant was suffering with a condition which was keeping him out of the workplace. I have no difficulty in assuming that the headaches were migraine and I do not think the Respondent purported to reject the fact of a disability. However, neither I nor the Respondent were ever given any further insight into the condition beyond the simple fact of the Complainant asserting it. More is required of any Employee seeking a reasonable accommodation in the workplace. The Complainant was diagnosed as fit to work on his return. Before the end of 2021 the Complainant’s extensive record of absenteeism by reason of sickness was negatively impacting his eligibility to take part in the civil service mobility scheme. As I understand it, the Chief Medical Officer was not able to assume that the illnesses experienced would not be recurring which I understand automatically rendered him ineligible for inclusion in the mobility scheme. The Complainant wanted to appeal the CMO decision but was put off by the fact that he would be expected to pay the €300.00 for the medical assessment as part of the Appeal process. I appreciate that, as a clerical officer, the Complainant was not on a huge salary but it seems to me that refusing to make provision for the medical review on appeal and in particular attending with a neurologist (for the purpose of seeking a reasonable accommodation) was ultimately a false economy. I know that other issues arose in the course of the employment. The Complainant’s Performance review was not great and the Complainant appeared to think any query regarding absenteeism and /or medical appointments was tantamount to harassment and invasion of privacy by the Employer. At the forefront though was a constant demand by the Complainant to be allowed work from home when the clear and stated policy in that office was for all staff to return to work post covid. In fact I am satisfied that within the parameter of what they could do for him his two line Managers (who gave evidence) really tried to work with the Complainant. This was done because the Complainant was highly regarded member of the team. I note that on the 14th of April 2022 the Complainant wrote an email to his Line Manager explaining the nature of the migraines he experienced and the work he had done to ameliorate the situation. The difficulty, as I see it, is that the Complainant has not given the Employer the independent third-party medical assessment it requires under the Workplace Accommodation Form request. Management cannot simply make changes to workplace practises simply because an individual demands it. There has to be some independent verification that it needs to be done. The Complainant repeatedly missed or failed to recognise this point. By June of 2022 the Complainant had determined that he had no future with this Government body. He was excluded from the mobility programme by reason of his absences and was not eligible for any reasonable workplace accommodation as he had not provided his Employer with any medical information which would suggest that same was required. In all the circumstances presented, I cannot find that the Employer has discriminated against the Employee herein. Whilst I do not doubt the fact of a disability, there is an onus on the party seeking to establish an accommodation (to work around the disability), to provide all the relevant information. The Complainant simply failed to do this. For reasons only he can understand he opted not to invest in this information being made available and, in fact, seemed to resent the very idea that the Employer should have any understanding of his medical situation and how it might impact the workplace performance. It is not within the competency of the Employer to determine the nature or severity of a disability and thereafter use guesswork to determine the appropriate accommodation required. It made no sense to me that the Complainant who seemed a genuine and honest person could not make the connection between the need to provide the appropriate information and the final desired outcome. I know the Respondent sought to make an issue of the Complainant’s entitlement to bring a claim after six months from the 13th of June 2022 – being the day the Complainant flagged an intention that he was going to resign. However, I am satisfied that the Complainant’s claim that he was being discriminated against by reason of the failure to provide reasonable accommodation would have to be considered extant right up to the date of actual departure. The Complainant terminated his employment as of the 28th of September 2022. He issued a complaint form on the 26th of March 2023. In failing to provide a medical report with accommodation recommendations the complainant ensured he would not get moved beyond the office environment he was in. In conclusion, I would state that I have taken the time to carefully review all the evidence both written and oral. I am not required to provide a line for line assessment of all the evidence heard and submissions tendered. Nor am I required to minutely indicate evidence that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”. I would however state that there was no evidence tendered which supported either of the claims of victimisation or harassment.
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Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00055722-001 – The Complainant was not discriminated against, and his claim therefore fails. |
Dated: 14th of February 2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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