Wickham (Represented by SIPTU) v SPS International (Represented by IBEC)
1. DISPUTE
This dispute involves a claim by Ms. Wickham that she was discriminated against and harassed by SPS International Ltd. on grounds of gender and disability, within the meaning of section 6(2) of the Employment Equality Act, 1998 and in contravention of sections 6, 8, 23 and 32 of that Act, in respect of aspects of her conditions of employment with the respondent.
2. BACKGROUND
2.1 The complainant contends that the respondent failed to permit her to return to work following an absence due to a back injury. She further contends that it failed to offer her suitable duties when she did return and that her Departmental Manager (Mr. A) continuously harassed her when she resumed duty. She also alleges that she was demoted and was refused annual leave and time off to attend medical appointments. She submits that the behaviour of the respondent constitutes (i) less favourable treatment of her and (ii) harassment on grounds of gender and disability. The respondent rejects the allegations.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Office of the Director of Equality Investigations on 25 February, 2002. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received from both parties and a hearing took place on 6 February, 2003. A number of issues emerged at the hearing which required clarification and gave rise to further submissions and correspondence from the parties subsequent to the hearing. Final confirmation that the parties were satisfied the Equality Officer was in possession of all the relevant material from their perspective was received on 31 August, 2003.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant suffered a back injury in 1990 and was absent from work as a result of this injury from June, 1994 to January, 1998, with the exception of two days in June, 1997. She contends that she was not permitted to return to work in June, 1996 and June, 1997 by the respondent because of her disability. When she returned to work in 1998 she was advised that the post she had occupied before her absence (Printer/Packer Co-ordinator) was filled by somebody else and she was assigned packing duties, a role the respondent knew she was unable to perform because of her disability. She further contends that two male colleagues (names provided) who were absent from work for long periods, were permitted to return to their original posts on resuming duty. She contends that this constitutes less favourable treatment of her on the discriminatory grounds cited.
3.2 The complainant states that she was classified at a grade higher than packer since 1989. As a result of a locally negotiated agreement between Management and the union, packers were upgraded to a grade higher than the complainant. She considers this to constitute a demotion of her within the organisation as it resulted in her rate of pay being lower than packers. She adds that in each of the years 1998, 1999 and 2000 she was refused options on her annual leave while male colleagues were not. In addition she stated that the Mr. A insisted that she take annual leave on 25 May, 2001 to attend a physiotherapy appointment and that he also refused her time off on 6 July, 2001 for attendance at another medical appointment, which she ultimately had to cancel. 3.3 The complainant states that the Mr. A took inadequate action on foot of her complaints that other staff used her office as a canteen and a smoking area whilst she was not there. She also alleges that several attempts were made by Mr. A and the Industrial Relations Manager between July and November, 2001 to get her to perform duties associated with the post of Data Entry/Labelling Co-ordinator. She adds that this post entailed duties which she considered might be detrimental to her back injury and she therefore rejected it. She contends that despite her requests, the respondent never carried out a risk assessment of this post with specific reference to her condition. The complainant states that the company doctor and the Mr. A approached her on the workshop floor on 21 February, 2002 and discussed her ability to operate the packing machine which was formed part of the duties of the Data Entry/Labelling Co-ordinator post. She alleges that during this conversation the company doctor accused her of being unreasonable and indicated to her that she was capable of carrying out packing duties. She states that this conversation took place in front of her colleagues and was embarrassing for her. She submits that these alleged incidents constitute discrimination and harassment of her on grounds of gender and disability contrary to the Act.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent argues the complainant's assertion that she was not permitted to return to work in June, 1996 and June, 1997 and January, 1998 because of her disability predates the coming into force of the Employment Equality Act, 1998 and was therefore not unlawful. It adds that she was permitted to return to work in January, 1998 on foot of certification from her doctor that she was fit to resume duty in her pre-disability post. It states that her original job had been filled during her absence and it was necessary to redeploy that member of staff. The complainant advised by letter dated 5 January, 1998 that she intended to resume duty the following Friday 9 January. The respondent replied suggesting that Monday 12 January might be better and she eventually resumed on 14 January in her original post. It argues that the two male colleagues cited by the complainant were absent for a considerably shorter period of time and they were employed in an area where it was easier to accommodate their return. The respondent submits that this timeframe is reasonable in the circumstances and rejects the assertion that it constitutes less favourable treatment of the complainant on either of the discriminatory grounds mentioned. The respondent also states that on her return to work in 1998 it provided her with a special chair and a device for picking up items without bending, following a meeting between her and her then supervisor so that she would minimise the possibility of aggravating her back injury.
4.2 The respondent rejects the complainant's assertion that she was demoted. It states that a number of packers (both male and female) were upgraded to the same grade as the complainant as a result of a plant-wide agreement between Management and the union. As a result of this the complainant sought to maintain the differential which had previously existed between her and the packers. Subsequently, she was upgraded in June, 2000 and February, 2001.
4.3 The respondent states that there are no formal procedures in place governing absences for medical appointments. However, it was common practice to allow time off for dental appointments (within reason) and time off with pay for medical appointments organised by the company were also permitted. No other absences were paid for, although informal arrangements existed with local managers whereby staff could work up hours in advance or take annual leave. These arrangement were available to the complainant and the respondent argues that she was not treated less favourable than other employees in this regard.
4.4 The respondent states that the plant closes down for a two week period each year. Only essential staff such as maintenance report for duty. The remainder of the staff's annual leave entitlement was taken in "floating days". The respondent attempts to facilitate as many requests as possible as regards annual leave but this is not always possible. It tries to deal with the matter in a fair manner and states that the complainant had been facilitated insofar as possible, although it accepted that there had been refusals. It added that other staff were also refused in similar circumstances. The respondent submits that the issue of smoking in the complainant's office is more suited to industrial relations issues. Notwithstanding this, it states that when the complainant brought the matter to its attention it arranged to have a lock put on the door, installed an extractor fan, placed a no smoking sign up and requested staff individually to refrain from smoking in the room.
4.5 The respondent states that the complainant's original post (Printer/Packer Coordinator) includes functions which involved packing. It states that it offered the complainant the post of Data Entry/Labelling Co-ordinator in a genuine effort to address the issues aired by the complainant about maintenance of differentials between her and other staff and to remove the task of packing from her, which was not included in the job specification for the new post. The respondent adds that Mr. A accepts he had frequent discussions with the complainant about the new post. His interaction with the complainant was however, motivated by his management style as a "hands on manager" and his view that his role as a manager encompassed him assisting staff in his area of responsibility to progress within the company. Mr. A rejects that he harassed the complainant but accepts that when he became aware that she perceived his actions as such he apologised to her (in the course of a meeting on 11 October, 2001) for any distress she may have felt as a result and agreed not to mention the issue of the new post again.
4.6 Mr. A accepts that following this meeting he requested the complainant to report for packing duties in accordance with her original job specification, based on his assessment that she had spare capacity within her working day (about two hours a day every other day). He adds that the packing duties which existed prior to her departure on sick leave bears no resemblance to the packing duties he was requesting her to do in October, 2001. Previously packing had been performed by hand and required a lot of standing. The process was now automated and could be performed sitting down. He furnished photographs of the machine involved and provided a sample of the packing box involved. Mr. A states that he had a risk assessment of the machine carried out and furnished a copy of same to the Equality Officer. He had also requested the company's doctor to assess whether or not the complainant could perform the duties in question. Finally he had agreed to provide the complainant with a special chair and footrest. The respondent accepts that Mr. A and the company doctor had spoken with the complainant on the factory floor. However, it contends that it did not entail any detailed discussion of the complainant's medical condition and the discussion was not overheard by her colleagues. The company doctor accepts that he may have informed the complainant she was unreasonable and that his tone was rather frank. He also accepts that she appeared upset but added that this was his professional opinion and he was engaged by the company to make such assessments. Finally, the respondent states that the company doctor was familiar with the complainant's condition and the work the complainant was being asked to perform and submits that it was entirely appropriate for him to observe the machine in operation, albeit by another person.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not SPS International Ltd. (i) discriminated against and (ii) harassed Ms. Wickham on grounds of gender and disability, within the meaning of section 6(2) of the Employment Equality Act, 1998 and in contravention of sections 6, 8, 23 and 32 of that Act, in respect of aspects of her conditions of employment with the respondent. In reaching my decision I have taken into consideration all of the written and oral submissions made by both parties.
5.2 Section 6(1) of the Employment Equality Act, 1998 provides:
"For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.".
Section 6(2) defines the discriminatory grounds for the purposes of the Act.
Section 8(1) of the Act provides:
"In relation to -- ...... (b) conditions of employment, ........ an employer shall not discriminate against an employee or prospective employee ........"
Section 23 of the Act provides:
"(1) If, at a place where A is employed (in this section referred to as "the workplace"), or otherwise in the course of A's employment, B sexually harasses A and either -- (a) A and B are both employed at that place or by the same employer, ....... then, for the purposes of this Act, the sexual harassment constitutes discrimination by A's employer, on the gender ground, in relation to A's conditions of employment.
(3) For the purposes of this Act -- ....... (c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material), shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A."
Section 32 of the Act provides,
"(1) If, at a place where C is employed (in this section referred to as "the workplace"), or otherwise in the course of C's employment, another individual ("E") harasses C by reference to the relevant characteristic of C and --
(a) C and E are both employed at that place or by the same employer, ....... then, for the purposes of this Act, the harassment constitutes discrimination by C's employer, in relation to C's conditions of employment, on whichever discriminatory ground is relevant to persons having the same relevant characteristic as C.
(5) For the purposes of this Act, any act or conduct of E (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material) constitutes harassment of C by E if the action or other conduct is unwelcome to C and could reasonably be regarded, in relation to the relevant characteristic of C, as offensive, humiliating or intimidating to C.".
5.3 The European Community (Burden of Proof in Gender Discrimination Cases) Regulations, 20011 provide that the complainant must, in the first instance, establish facts from which it can be inferred she suffered discriminatory treatment because of her gender. It is only when such a prima facie case has been established that the burden shifts to the respondent to rebut this inference of discrimination. Such an approach has also been adopted by this Tribunal and the Labour Court2 in cases concerning discrimination on the non-gender grounds, and I propose to apply that approach in this case. However, sections 23 and 32 of the Act, which deal with harassment, do not require the complainant to show that she was less favourably treated, rather she has to demonstrate that the treatment complained of was unwelcome to her and could reasonably be regarded as offensive, humiliating or intimidating to her by reference to her gender or disability.
1 S.I. 337 of 2001
2 Dunbar v Good Counsel College DEC-E2003/51 and Flexo Computer Stationery Ltd. v Coulter ED/03/10
5.4 The first element of Ms. Wickham's complaint concerns her return to work following a prolonged absence due to a back injury. As all of these incidents pre-date the coming into force of the Employment Equality Act, 1998, they cannot constitute unlawful discrimination on the ground of disability. I note the complainant resumed work (in January, 1998) within two days of the date suggested by the respondent and that she was assigned to the position she held before her absence (four years previously) - the post to which she wanted to return in any event. I also note the respondent's comments about the treatment of male employees returning to work after absences of a much shorter duration than the complainant. I am satisfied that the respondent's actions were reasonable in the circumstances and that the complainant did not suffer less favourable treatment on grounds of gender nor does the behaviour of the respondent amount to harassment contrary to the Act.
5.5 The complainant asserts that she was effectively demoted by the respondent by virtue
of an "in house" agreement between Management and the union in relation to staff at the grade of packer. I am satisfied that as a result of this arrangement the differential between her and packers was eroded. However, I note the complainant was upgraded in June, 2000 and February, 2001. I accept the respondent's evidence that offering the post of Data Entry/Labelling Co-ordinator to the complainant was a genuine effort on its part to address the issues aired by the complainant about maintenance of differentials between her and packing staff, issues that had been constantly pursued by both her and her union for a couple of years, as well as removing the task of packing from her post. Whilst the manner in which the respondent addressed the matter with the complainant may be lacking in some respects, I cannot conclude on the basis of the evidence presented, that she was treated less favourably on grounds of gender or disability, in fact I note the complainant never actually performed the tasks attached to the new post. In addition, I note that Mr. A apologised to the complainant at the meeting on 11 October, 2001 for any distress suffered by her as a result of their interaction and the complainant accepts that the issue of the new post was never raised by him again. In the circumstances, I find, on balance, that the treatment of her does not constitute harassment contrary to the Act.
5.6 The complainant has failed to adduce evidence to demonstrate that she was treated less favourably or harassed in respect of her annual leave or attendance at medical appointments. That been said, I would like to indicate that it is a cause of concern to me that an employer should operate a practice which requires an employee to work up time, or take annual leave, to attend medical appointments in connection with a condition which amounts to a disability under the Act. The issue of other staff smoking in her office is a matter more suited to health and safety or industrial relations arenas. However, I note the respondent took action to address this matter, which, in the circumstances, might well be considered reasonable and the extent to which it could respond on the issue.
5.7 It is accepted by the respondent that Mr. A asked the complainant to perform packing duties after the meeting of 11 October, 2001. I note the respondent's comment that this arose because packing was included in her original job specification and I am satisfied that this is accurate. The respondent argued that the duties involved were completely different to those which prevailed before her absence. I have examined a photograph of the packing machine in question, as well as a sample of the packing cartons and I am satisfied that this is the case. I note the respondent had its internal health and safety personnel conduct a risk assessment on the machine in question which identified the risks and indicated the associated action which could alleviate those risks. I also note the respondent was prepared to provide a special chair and chute for the complainant which would have assisted her in these duties and that the task was not intended to be a permanent feature of her job insofar as it was only a couple of hours every other day. In addition, the respondent's company doctor, who was familiar with the complainant's injury, observed the machine in operation and was of the view she could perform the task. Finally, the complainant never actually operated the machine at any time. In light of the foregoing, I find that the complainant was not less favourably treated on grounds of gender or disability, nor do the actions constitute harassment contrary to the Act. However, it is again an issue of concern that an employer would take what might be considered a unilateral decision - albeit with internal medical and other opinion - on an employee's (with a disability) capacity to perform particular tasks, where that capacity was disputed by the employee in question. I would think it prudent in those circumstances to at least seek a second opinion on the issue before making such a decision.
5.8 The complainant contends that the manner in which Mr. A and the company doctor raised this issue with her on the factory floor constitutes harassment. I note the company doctor acknowledged that he was frank with her and that she appeared upset. It may have been better had the discussion taken place in another location, although I am satisfied, on the basis of evidence given by one of the complainant's colleagues that the conversation was not overheard by anybody in the vicinity. In addition, I believe that the complainant would have been upset wherever the discussion took place. In the circumstances, I cannot conclude that these actions constitute unlawful harassment of the complainant on the grounds cited.
5.9 When dealing with a series of individual incidents of alleged harassment, I consider it necessary to examine the total effect of the alleged incidents, in addition to looking at each incident separately, to determine whether or not cumulatively, they could be regarded as harassment under the Act. I have already stated that the actions of the respondent in this case could have been better, in particular when the complainant rejected the Data Entry/Labelling Co-ordinator post - it should have left the matter drop instead of pursuing it with her. I accept that the entire episode was a traumatic time for Ms. Wickham. However, I cannot conclude that the totality of its actions constitute harassment of her on grounds of gender or disability contrary to the Act.
6. DECISION
I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her or harassed her on grounds of gender or disability contrary to the Act.
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Vivian Jackson
Equality Officer
11 December, 2003