Mr. O (Represented by Ms. Honan B.L. instructed by O'Mara Geraghty McCourt, Solicitors) V A Named Company (Represented by Mr. Horan B.L. instructed by Michael McInerney & Co., Solicitors)
1. DISPUTE
1.1 This dispute concerns a claim by Mr. O who was employed by a Named Company that he was discriminated against on the grounds of disability in terms of Sections 6(1) and 6(2)(g) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when he was treated less favourably than a person without the disability and by the respondent's failure to provide reasonable accommodation to enable him to return to full-time work. It is the complainant's contention that he was harassed within the meaning of Section 32(5) of the 1998 Act when he was treated in a hostile and aggressive manner. The complainant also alleges that he was victimised in accordance with Section 74(2) of the 1998 Act when his pay and VHI contributions were terminated following the referral of his complaint to the Office of the Director of Equality Investigations.
1.2 The complainant referred a complaint to the Director of Equality Investigations on 17th July, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Mary Rogerson, Equality Officer on 23rd September, 2002. For operational reasons and with the consent of Ms. Rogerson the case was reassigned in accordance with Section 75(7) of the 1998 Act to Gerardine Coyle on 27th January, 2003 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions from both parties joint hearings took place on 8th July and 24th October, 2003.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant commenced employment with the respondent in 1988. When his employment terminated in October, 2002 he was employed as a senior graphics designer. Throughout his employment with the respondent his health suffered as a result of anxiety caused by work-related stress. In April, 2002 the complainant was admitted to St. John of God's Hospital suffering from anxiety and depression. Following treatment over a number of weeks he was certified fit to return to work on a phased basis. He returned to work on 24th June, 2002 and attended work again on 25th June, 2002. The complainant was absent from work for the rest of that week as he was attending the hospital and he took annual leave the following week. On his return to work on 9th July, 2002 the complainant says that the respondent asked if he would attend a consultation with a nominated consultant psychiatrist before resuming employment. The complainant duly attended and, on the basis of this medical advice, he was deemed unfit to return to full-time employment. It was recommended that he be seen by an Occupational Health Specialist prior to returning to full employment. The complainant submitted a certificate which he received from his treating consultant psychiatrist in St. John of God's Hospital dated 1st August, 2002, stating that the complainant was fully fit to resume employment with effect from 5th August, 2002. At the request of the respondent the complainant was then seen by an Occupational Health Specialist and he received a further certificate of full fitness from his treating consultant psychiatrist in St. John of God's Hospital before he returned to full-time work on 9th October, 2002.
2.2 In the course of his submission the complainant made reference to a number of issues which warrant mention as follows:
(a) The complainant states that he met with a partner from the respondent organisation on 14th June, 2002 and he understood that the respondent was agreeable to his returning to work on a phased basis over a period of two to three weeks and having an informal meeting in the office the following Friday (21st June, 2002);
(b) The complainant visited the workplace on 21st June, 2002 prior to resuming employment on 24th June, 2002. He alleges that one of the partners in the respondent organisation was hostile to the arrangement to return to work on a phased basis and was extremely aggressive to him and this behaviour continued during a telephone call later that day;
(c) The complainant alleges that, at a meeting with the partner, on 25th June, 2002 the partner expressed anger about the fact that he (the complainant) would not be returning to work full-time and he informed the complainant that he would not be paid for days he was attending hospital as an outpatient;
(d) On 9th July, 2002 the complainant was told by the respondent that it could not continue to pay him and this took effect from 19th July, 2002. It is the complainant's contention that this treatment of him caused considerable stress;
(e) The complainant notes that his VHI payments in respect of himself and his family ceased on 22nd July, 2002 and he was not notified;
(f) On the complainant's return to work on 9th October, 2002 he alleges that, at a meeting with two of the partners in the respondent organisation, he was subjected to further aggressive and hostile treatment. He was presented with a job specification for the first time. Furthermore he was informed that he would no longer be dealing with clients and that his work would be monitored;
(g) The complainant alleges that, on 9th and 10th October 2002, he was ignored by the partners in the respondent organisation. On 9th October, 2002 he was assigned a task with a deadline of 3.00p.m. and on the following morning he was assigned a task with a deadline of 1 hour;
(h) On 11th October, 2002 the complainant considered he was left with no other option but to terminate his employment.
2.3 The complainant submits that he has been treated less favourably than employees without his disability and, furthermore, that he had been treated less favourably than an employee in his position would have been treated if that employee did not have his disability. It is submitted that the complainant was fully competent and available to undertake and fully capable of undertaking the duties attached to his position in the respondent organisation. Without prejudice to this argument the complainant submits that he would have been fully competent and fully capable of undertaking the duties attached to his position if the respondent organisation had done all that was reasonable to accommodate his needs by providing special treatment or facilities in accordance with Section 16(3) of Employment Equality Act, 1998. It is submitted that the treatment of the complainant constitutes harassment within the meaning of Section 32(5) of the 1998 Act and contravenes it. The complainant further submits that he has been victimised by the respondents within the meaning of Section 74(2) of the Employment Equality Act, 1998 by the termination of his pay and his VHI contributions following the referral of his complaint to the Office of the Director of Equality Investigations on 15th July, 2002.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent denies that the complainant was the victim of discrimination on the disability ground and/or victimisation or that it is or was in breach of the Employment Equality Act, 1998 in any respect alleged by the complainant or at all.
3.2 The respondent rejects the entirety of the complainant's allegations and says that his conspicuous failure/refusal to raise his alleged grievances with it so as to afford it an opportunity of addressing them is fatal to any contention that he was forced to resign his employment. The respondent further does not admit that the complainant suffered or suffers a disability within the meaning of "disability" as defined in Section 2(1) of the 1998 Act. According to the respondent the complainant has not advanced any medical evidence of disability but rather has contended for an alleged condition which he describes as "work related stress". It is the respondent's submission that the complainant is seeking to artificially bolster his alleged claim by attributing his anxiety state to the respondent organisation. The respondent submits that this alleged condition (which is denied) does not conform with the definition of disability in Section 2(1) of the 1998 Act. According to the respondent the complainant had illness-related absences from his employment for protracted periods (i.e. 46 days in 1977 and 115 days in 2002) and he had been treated sympathetically even though his absences had been seriously disruptive.
3.3 The respondent rejects the contention that it refused to make any reasonable accommodation to facilitate the complainant's return to work as alleged by the complainant. It is the respondent's contention that the complainant insisted on returning to work in circumstances where he was manifestly incapable of performing any meaningful work. The respondent states that the role of Senior Designer is a demanding function in that it requires the exercise of a high level of critical and analytical ability and it cannot be fulfilled by an individual who is unfit. With prejudice to this contention the respondent states that it sought to alleviate the complainant's burden and he was allotted generous time within which to perform basic functions on his return to work in October, 2002.
3.4 The respondent rejects the complainant's allegations that he was treated in a hostile, intimidating or offensive manner following his hospitalisation in April, 2002. According to the respondent the complainant was treated with every consideration from the time he took ill in April, 2002. The respondent notes that it arranged the complainant's immediate hospitalisation in April, 2002 including taking him to one of the partner's personal physicians and taking him for admission to St. John of God's hospital that day. It is the respondent's submission that it paid the complainant 70 days in 2002 whilst he was on certified sick leave although there was no legal obligation to do so. During his hospitalisation the respondent says that it maintained continuous contact with the complainant's wife. Furthermore on his return to work on 9th October, 2002 the respondent notes that the Creative Director invited the complainant to have lunch in the staff recreational room with himself and other staff members but this invitation was declined.
3.5 The respondent has responded to the issues raised by the complainant at paragraph 2.2 above as follows:
(a) The respondent denies that it agreed that the complainant should return to work on a phased basis as asserted by him. According to the respondent the complainant, at this meeting, mentioned particular symptoms of his condition including memory loss and confused thinking. The respondent states that the partner who met the complainant was concerned at his observations about his condition and the partner indicated that he wished to discuss the complainant's proposals with the other partners in the respondent organisation. According to the respondent the partner later rang the complainant asking him not to return to the office on the following Friday.
(b) The respondent states that when the complainant attended the office on Friday, 21st June, 2002 he was told by one of the partners that the respondent could not take responsibility for his return to work in current circumstances but he indicated that he himself was taking full responsibility for returning to work full-time the following Monday. According to the respondent it was apparent that the complainant was incapable of performing any meaningful work;
(c) It is the respondent's contention that the complainant was treated with every courtesy during discussions held with him on 25th June, 2002. The respondent notes that the complainant was paid for the days he attended hospital on 26th, 27th and 28th June, 2002;
(d) The respondent denies that the complainant was told on 9th July, 2002 that his salary would be discontinued as no decision in relation to his salary had been taken at this time;
(e) According to the respondent the VHI contacted it on 29th July, 2002 asking for the date the complainant left the employment of the respondent organisation and was advised that the complainant had not left the employment but was on long term sick leave. The respondent says that it was advised by VHI that the policy had been transferred into the complainant's personal name but he could rejoin the Group Scheme at any time in the future. The respondent notes that it paid the complainant's personal pension contributions while he was on sick leave and it would have paid his VHI contributions had he not transferred his policy from the Group Scheme;
(f) The respondent denies that the complainant was subjected to aggressive and hostile treatment at a meeting with partners on 9th October, 2002. According to the respondent the job specification given to the complainant had been shown to him by the Occupational Health Specialist when he met him on 13th August, 2002 and on this occasion the complainant had read and agreed the content of the job specification. The respondent accepts that it told the complainant that he would not now be dealing with clients as communications with clients would be channelled through the Creative Directors. According to the respondent the primary reason for this decision related to the complainant's admission that he was suffering memory difficulties and it was deemed prudent to protect clients. The respondent submits that the complainant was in full agreement that his work should be monitored;
(g) The respondent denies that the complainant was ignored by the partners when he attended work on 9th and 10th October, 2002. The respondent says that, on his return to work, the complainant was assigned a small project to ease him back into the work. This
project should take 2 to 3 hours to complete and the complainant was given 4½ hours to complete. It was not until the following morning that the complainant produced poor quality work which he was advised to amend but he failed to address all of the problems identified. It is the respondent's contention that the complainant was not assigned any tasks on 10th October as he had not completed the task assigned on 9th October, 2002. On 11th October, 2002 the complainant was assigned a task which should take less than 30 minutes to complete and he was asked to complete it within 1 hour. The respondent notes that the complainant delegated this task to another designer despite having no authority to do so.
(h) The respondent notes that the complainant's letter of resignation alleged unreasonable behaviour and a hostile atmosphere.
According to the respondent the complainant failed to explain the meaning of this when asked to do so.
3.6 In conclusion the respondent denies that it discriminated against the complainant on the grounds of disability. It rejects the assertion by the complainant that he was fully competent and available to undertake and fully capable of undertaking the duties attached to his position. The respondent says that the complainant was manifestly incapable of discharging his duties in June, 2002. In conversation with the Creative Director he was agitated, he admitted memory loss and could not recall the destination of his holidays the following week. The respondent submits that the contention that it failed to do all that was reasonable to accommodate the complainant's needs by providing for special treatment or facilities in accordance with Section 16(3) of the Employment Equality Act, 1998 is misconceived. It is the respondent's contention that there were no further steps that it could have taken having regard to the complainant's ailment and his manifest inability to perform basic functions nor indeed has the complainant identified the special treatment or facilities which it has failed to provide.
3.7 The respondent denies that there has been the alleged or any harassment of the complainant whether on the alleged grounds of disability or otherwise. It is the respondent's contention that there was no act or conduct on its part within the meaning of Section 32(5) of the 1998 Act which constituted (or could be construed as constituting) harassment as alleged or at all. The respondent also says that there has been no victimisation of the complainant within the meaning of Section 74(2) of the Act by the respondents and its decision to terminate the complainant's salary and agree to the cessation of the VHI payment was lawful and not discriminatory.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In making my decision in this claim I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 I note that the respondent in its submission has alleged that the complainant was not suffering from a disability given the definition of disability in the Employment Equality Act, 1998. Disability is defined in Section 2 of the 1998 Act as follows:
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body;
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness;
(c) the malfunction, malformation or disfigurement of a part of a person's body;
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
At the hearings of this claim I note that all the medical professionals present, for both the complainant and the respondent, accepted that the complainant's illness was covered by the definition of disability in the Employment Equality Act, 1998. I too am satisfied that the complainant's illness does come within the meaning of the above definition.
4.3 The complainant, in his submission, stated that his health suffered as a result of anxiety caused by work-related stress. The respondent denied this and stated that there was no evidence to support such a contention. At the hearings of this claim the complainant stated that it was irrelevant whether or not the stress was work-related, the fact was that he was suffering from a disability under the Act and the issue to be investigated was whether or not he was discriminated against on the grounds of that disability. As this was raised initially by the complainant and addressed at some length by the respondent I feel that it is necessary to deal with it. The complainant is correct is saying that it is irrelevant whether the stress was work-related, the fact is that he suffered stress (a disability under the 1998 Act) and the issue of discriminatory treatment, harassment and victimisation must be investigated in that context. Having said that I must also make it clear, having regard to the extensive medical evidence at the hearings of this claim, that I am satisfied that the complainant's disability was not solely work-related. His medical difficulties had occurred many years prior to this employment and possibly when he was an adolescent. Major incidents in his life, many of which were personal, had adversely affected his condition and stress at work (i.e. having to produce quality work to deadlines) aggravated the condition.
4.4 It is the complainant's contention that he was treated less favourably by the respondent than a person without his disability. In this regard the complainant points to the failure by the respondent to allow him to return to work initially on a phased basis and then full-time even though he had a certificate from his consultant psychiatrist stating that he was fit to return to full-time work with effect from 5th August, 2002. On his return to full-time work on 9th October, 2002 the complainant alleges that the respondent failed to afford him the opportunity to come to terms with his work (i.e. computer programs, projects previously worked on, etc.) by the immediate assigning of projects with time deadlines. Before addressing these issues in detail it is appropriate to set out the background to them as follows:
Return to Work on a phased basis
The complainant was admitted to St. John of God's Hospital on 15th April, 2002 and was discharged on 6th June, 2002. He attended the hospital as a day patient since his discharge and in the future would continue to attend the hospital as an outpatient. At 20th June, 2002 the medical staff in the hospital stated that the complainant should be able to return to full-time employment as in the past but it would be preferable if his return to work could take place on a phased basis. In relation to the complainant's return to work the respondent states that it is a small organisation having a total of 13 employees. Given that the work is project based it is not feasible to have staff working on an irregular basis, hence it was not possible to offer the complainant a phased return to work. According to the respondent the complainant would have to return to work on a full-time basis. The complainant did return to work on Monday and Tuesday, 25th and 26th June, 2002. For the remainder of that week he attended the hospital and he took a week's leave the following week, returning to work on 9th July, 2002. It is the respondent's contention that the complainant undertook no meaningful work on 25th and 26th June, 2002. He met with the Creative Director who stated that the complainant appeared agitated and was unable to tell him where he was going on holidays the following week. The Creative Director was concerned about this apparent lapse in memory and on 9th July, 2002, when the complainant returned from leave, he was informed by the respondent that he could not return to work until such time as he had been examined by a consultant psychiatrist appointed by them.
Return to full-time work
The complainant was examined by a consultant psychiatrist appointed by the respondent on 11th July, 2002. In his report the consultant psychiatrist held that the complainant suffered from a severe anxiety type illness or an atypical depressive illness and this was confirmed by telephone with the complainant's treating consultant psychiatrist in St. John of God's Hospital. The consultant psychiatrist appointed by the respondent was of the opinion that the complainant was not well enough to return to his position as a senior designer as per his job description for at least two weeks and possibly even four weeks. He recommended that the complainant should receive a clearance medical certificate from his treating consultant psychiatrist stating that he is fully capable of going back to his job before returning to work. He also recommended that he be assessed by an Occupational Health Specialist in either four weeks time or within a period of one or two weeks of the treating consultant psychiatrist advising that he is well enough to return to
full-time duties. On 1st August, 2002 the complainant's treating consultant psychiatrist gave the complainant a certificate of fitness to return to full-time work with effect from 5th August, 2002. On receipt of this certificate the respondent then asked the complainant to attend for an examination by an Occupational Health Specialist as recommended by the consultant psychiatrist appointed by the respondent. This examination took place on 13th August, 2002. According to the Occupational Health Specialist the complainant agreed with the job description as supplied by the respondent. It was the Occupational Health Specialist's opinion that the complainant was medically unfit to resume his normal duties until again assessed by his treating consultant psychiatrist and given a fitness to return to work certificate because his treating consultant psychiatrist had recently changed the complainant's medication and put him on anti-depressants. The Occupational Health Specialist also stated in his report that he was unsure that the complainant would be able to give the respondent continuous employment in the future given the ongoing nature of his
condition. On 19th September, 2003 the complainant's treating consultant psychiatrist gave the complainant a certificate stating that when last seen on 1st August, 2002 he was fit to return to work on a full-time basis as of 5th August, 2002. This certificate was furnished to the respondent with an accompanying letter from the complainant dated 23rd September, 2002 and on 27th September, 2002 the respondent invited the complainant, in writing, to return to work at 9.00a.m. on 9th October, 2002.
Treatment of the complainant on his return to work
The complainant alleges that on his return to work in June, 2002 he was treated in a hostile manner and a number of the partners in the respondent organisation ignored him. Similarly when he returned to work in October, 2002 he was also treated in a hostile manner. Furthermore at a meeting with a number of partners on 9th October, 2002 the complainant alleges that they were aggressive and hostile. The complainant is critical of the respondent for its failure to afford him an opportunity to re-familiarise himself with the work of the respondent organisation including complex computer programmes. Rather he was assigned projects and given inadequate deadlines within which to complete them.
4.5 Section 16 of the Employment Equality Act, 1998 provides 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 .... the duties attached to that position or will not accept .... the conditions under which those duties are, or may be required to be, performed, or
(b) is not .... 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.
(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other then fully competent to undertake, and fully capable of undertaking, any duties if,
with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(a) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost,
other than a nominal cost, to the employer."
At the second hearing of this claim the complainant stated that any conclusion not reached in a reasonable/objective way is discriminatory. According to the complainant the respondent should have provided reasonable accommodation having undertaken a full and proper assessment. In this regard the complainant directed the Equality Officer to the cases of Mid Staffordshire General Hospitals NHS Trust v Cambridge2 and Equality Officer Decision in An Employee v A Local Authority3.
Return to Work on a phased basis
4.6 I note that the complainant's treating consultant psychiatrist recommended that the complainant return to work on a phased basis. In making this recommendation the consultant psychiatrist was not very knowledgeable about the complainant's work, however he was making the recommendation in the context of his opinion on how best the complainant could ultimately return to the working environment. While this was recommended by the treating consultant psychiatrist it was for the respondent to implement if it deemed it possible. At Section 16(1) of the Employment Equality Act, 1998 an employer is not required to retain an individual in a position if the individual is not fully competent to undertake the duties attached to that position having regard to the conditions under which those duties are required to be performed. While Section 16(3) provides that an employer should do all that is reasonable to accommodate the needs of a person who has a disability it is the respondent's contention that it was not reasonable to allow the complainant to return to work on a phased basis given that the organisation is small and that a person working on a part-time basis would prove too disruptive where the work comprised projects with deadlines. The Creative Director indicated that if he was absent from work for a day it took at least a half an hour to be appraised of progress on a project.
4.7 At the first hearing of this claim the complainant had a former employee attend on his behalf. This employee had been with the respondent organisation for some 12 years (from 1990 to May, 2002) employed as a Senior Finish Art Worker and IT Manager. In 2000 his request to work half days for a six week period was accommodated while he received treatment for alcoholism. (He would start work at 9.00a.m., leave at 10.00a.m. and return to work at 1.00p.m.). This person stated that he had no previous sick leave record apart from an occasional day and from January, 2001 he rarely had sick leave. He also stated that he was paid while absent on sick leave but this was at the discretion of the respondent. The circumstances of this case are very different to the complainant's case in terms of the work undertaken, the medical condition and the duration of absence from work. Therefore I consider that it is not appropriate to compare the two situations.
4.8 The respondent spoke to the treating consultant psychiatrist's Registrar about the complainant's condition on 18th June, 2002 and during this telephone conversation was told that it would be desirable for the complainant to return to work on a phased basis over 2 - 3 weeks. I have noted the respondent's contention that it was not feasible to allow the complainant to return to work on a phased basis given the nature of the work and the size of the organisation. However it was for a short period of time in the context of the complainant's overall absence from work and the respondent did facilitate another employee for a longer period of time. I am satisfied that the arguments made for not allowing the complainant return to work on a phased basis also applied when his former colleague was allowed time off on a daily basis to attend for treatment for his condition. Therefore I can only conclude that the respondent discriminated against the complainant by treating him less favourably than a former colleague with a different disability.
Return to Work full-time
4.9 The history of the complainant's return to work full-time is set out in paragraph 4.4 above. It is the complainant's contention that he should have been allowed to return to work full-time after he received a certificate of full fitness from his treating consultant psychiatrist which stated that he would be in a position to return to work on a full-time basis with effect from 5th August, 2002. The respondent had sought an independent medical examination of the complainant and it is clear from the history set out in paragraph 4.4 above that the respondent acted on the advise of this independent medical opinion by organising an appointment with an Occupational Health Specialist. I am, therefore, satisfied that the respondent did not unduly delay the complainant's return to work on a full-time basis. Having regard to the Labour Court's Determination in the case of A Health and Fitness Club and A Worker4 the respondent has to be commended for endeavouring to establish the full facts in relation to the complainant's medical condition. In that case the Labour Court held that there is an onus on an employer to ensure that an employee is not fully capable of performing the duties for which they are employed by making "adequate enquiries so as to establish fully the factual position in relation to the employee's capacity". The Labour Court held that this "would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently".
4.10 In terms of the efforts made by the respondent to establish the nature of the complainant's condition it is important to note that the respondent was aware that the complainant was suffering from a psychiatric condition but it was not aware of the complainant's medical diagnosis of obsessional personality disorder/panic disorder as outlined by St. John of God's Hospital in a discharge letter to the complainant's GP I note, however, that the respondent in this case attempted to establish the full extent of the complainant's condition by getting the complainant's written consent to receive a medical report from the medical personnel in St. John of God's Hospital and by contacting St. John of God's Hospital and speaking to the Registrar attached to the complainant's treating consultant psychiatrist. Despite this effort the respondent was not informed of the complainant's actual diagnosis and it was only at the second hearing of this claim that the respondent became aware of the severity of the condition when the complainant's treating consultant psychiatrist said that he had never before encountered such a severe form of this condition. The respondent noted that it was held in the case of Morgan v Staffordshire University5 that the condition must be precisely known to the employer.
4.11 From the viewpoint of the complainant's treating consultant psychiatrist he or his Registrar could not disclose the complainant's medical diagnosis to the complainant's employer as it is a matter of confidentiality between him and his patient. It was clear from the hearings in this claim that the complainant himself was not aware of the medical terms which described his condition/diagnosis until the discharge letter to his GP had been submitted as evidence to the Equality Officer. The respondent had organised for the complainant to be assessed by an independent consultant psychiatrist. This consultant psychiatrist did not seek a written report on the complainant from his treating consultant psychiatrist in St. John of God's hospital as there was an urgency on him to carry out his assessment and he would not have time to seek a written report. However after the assessment the independent consultant psychiatrist did contact the complainant's consultant psychiatrist in St. John of God's Hospital. There was a conflict between the psychiatrists as to what was said in this conversation. The important issue here is that the respondent, through no fault of its own, was not aware of the complaint's diagnosis. Even though the respondent asked the complainant to provide the Occupational Health Specialist with a report from the treating consultant psychiatrist the Occupational Health Specialist was not informed of the medical diagnosis. In these circumstances I am satisfied that the respondent did make every effort to appraise itself of the complainant's condition.
4.12 The respondent was critical of the fact that it was not given full details of the complainant's diagnosis and it was not offered any counselling on how to deal with the complainant given his condition. It should be noted that counselling was given to the complainant's wife and the complainant was given a number of weekend passes at home prior to discharge. While the respondent was critical that it was not offered counselling I note that it did not, of its own accord, request counselling. It could be excused in this regard given that it was not aware of the complainant's medical diagnosis or indeed the severity of his condition.
Treatment of the complainant on his return to work
4.13 The complainant has argued that the respondent should have afforded him time to settle back into work and to re-familiarise himself with computer programs without assigning him projects. According to the Creative Director the computer programs had not changed from when the complainant left the workplace on sick leave the previous April. He stated that the complainant had worked on these programs for a period of some eight years and, like learning to ride a bicycle, once you learn you do not forget. Consequently the Creative Director assigned one project to the complainant and allocated him more than ample time in which to complete it. The complainant failed to meet the deadline set and when he did submit the completed task the following day the Creative Director says that it failed to meet the required standard, even having regard to the subjective nature of this work. According to the Creative Director he asked the complainant to amend the work but he failed to incorporate all the amendments. On the following day the Creative Director assigned the complainant a simple task which would normally take 30 minutes to complete and he gave him one hour in which to complete it. The complainant did not undertake the exercise (as he was writing his letter of resignation) but passed it to a colleague without giving clear instructions as to what had to be done. According to the respondent the complainant had no authority to delegate work. The nature of the complainant's job was to undertake projects and complete them to set deadlines. What must be remembered here is that the complainant was returning to work after a considerable (6 months) absence. It is my opinion that the respondent did not act reasonably when it assigned tasks to the complainant on his first day back. The respondent was aware that stress aggravated the complainant's condition and it could have afforded him a couple of days to settle back into the work routine before assigning him tasks.
4.14 It is accepted that the complainant was told that he was not to have any contact with clients and that his work would be monitored. According to the respondent the reason that the complainant was not to have contact with clients was because of its concern at the impression he would make having regard to his previously stated memory loss. Given that the respondent organisation was small the respondent was concerned at remaining competitive in the marketplace. In these circumstances I am satisfied that the respondent was justified in its decision in the short-term but the complainant should have been told that this was subject to review and reversed if the respondent was satisfied with his performance. The complainant did not remain long enough in the job for this to have happened. The respondent accepts that the complainant was told that his work would be monitored and says that he was happy with this proposal. I am satisfied that the only reason the respondent was monitoring the work of the complainant was because of his disability and, while there was naturally a level of monitoring of work in the organisation, this extra monitoring of the complainant had the effect of adding to his stress levels. I find that, in these two respects, the complainant was discriminated against by the respondent. Furthermore the complainant contends that the respondent could have asked him what he wanted in terms of his return to work rather than imposing their requirements on him. The respondent's failure in this regard may have been in some way attributable to the conversation between the respondent and the complainant's treating consultant psychiatrist's Registrar on 18th June, 2002 when she advised the respondent to outline to the complainant what the respondent organisation expects from him and what his duties entail. Having regard to the Labour Court's Determination in EED0376 I am satisfied that the respondent should have afforded the complainant an opportunity to express his own wishes in terms of workload on his return to work in an effort to find common ground which would have been acceptable to both parties.
4.15 The complainant alleges that he was subjected to harassment by the respondent. Harassment is defined in Section 32 (5) of the Employment Equality Act, 1998 as follows:
"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."
The complainant's allegations relate to the failure by a number of partners to communicate with him on his return to work. He says that the partners were hostile and aggressive towards him in June, 2002 when he returned to work for 2 days and again at meetings with him on 9th and 11th October, 2002. At the meeting on 9th October, 2002 the complainant states that the respondent did not ask him what he wanted in relation to work, rather conditions were imposed on him namely to refrain from communication with clients and that his work would be monitored. The respondent denies the allegations that it was hostile or aggressive towards the complainant. It accepts that it did inform the complainant that he would not be dealing with clients and that his work would be monitored. Where there is a conflict of evidence, as in this case, it is necessary for me to decide on the balance of probabilities which version of events is more credible. There is evidence before me that a partner from the respondent organisation met with the complainant throughout the course of his employment and listened to his concerns about matters of a personal nature. When the complainant stated that he felt unwell in April, 2002 and was having suicidal thoughts the respondent immediately organised for him to be seen by a doctor and also took him to St. John of God's Hospital for admission. While in hospital the respondent kept in contact with the complainant's wife to find out how the complainant was doing. The complainant was assigned simple tasks on his return to work and given extended deadlines in which to complete them. This was confirmed by the Creative Director and I note that, at the hearing, the complainant stated that he had a very high regard for the Creative Director who was a very honest and genuine person. In these circumstances I find that the complainant has failed to provide prima facie evidence of harassment and I am satisfied that, on the balance of probabilities, the respondent's version of events is more credible.
Victimisation
4.16 The complainant alleges that he was subjected to victimisation by the respondent in accordance with Section 74(2) of the Employment Equality Act, 1998 when his pay was ceased while he was on sick leave and when his VHI payments were stopped. The complainant argued that, while he did not have a contract of employment, there was an implied obligation on the respondent to pay him while he was absent on sick leave because they had always done so in the past and had always paid other employees while absent on sick leave. In this regard the complainant cited the case of the National Coal Board v Galley7 where by working in accordance with certain terms the parties had thereby entered into an agreement in respect of those terms. He also cited the case of Scott v Yeates and Sons8 where the EAT implied into an employment contract the contractual right to return to work after maternity leave, the implied term arising from past conduct of the parties during the employment in question. In its defence the respondent referred to the case of London Clubs Management Ltd v Hood9 in which the Employment Appeals Tribunal (EAT) set aside a decision of an employment tribunal that the failure to pay sick pay was discriminatory under the Disability Discrimination Act, 1995.
4.17 Firstly sick pay is at the discretion of the respondent and there is no statutory obligation on the respondent to pay an employee while absent on sick leave. In terms of sick pay the respondent was very generous in terms of sick pay to the complainant who had long periods of sick leave over the years. The complainant was absent on sick leave for 145 days during 2002 and the respondent did pay him for 70 of those days. Secondly I note that at a meeting with the complainant on 9th July, 2002 the respondent informed him that a decision would have to be made on whether or not sick pay could be continued but this decision would not be made until after his examination on 11th July, 2003 by the consultant psychiatrist appointed by the respondent. Following this examination a decision was taken to cease payments to the complainant while he was on sick leave and this was effective from 19th July, 2002. I note that the complainant was put on notice on 9th July, 2002 of the possibility that his sick pay would cease in the future before he referred a complaint of victimisation to the Director of Equality Investigations on 15th July, 2002.
Therefore I am satisfied that the respondent did not subject the complainant to victimisation by not paying him while he was absent on long term sick leave.
4.18 I note that, at the hearings of this claim, the complainant stated that he had refused sick pay in the past and he had also refused salary increases. The respondent accepted that this was true but pointed out that the complainant had been given a parking space at work at a considerable cost to the respondent organisation. It should be noted that only partners in the organisation had parking spaces. Furthermore on one occasion when the complainant did not get a salary increase he was given money to purchase a computer for himself at home.
4.19 At the first hearing of this claim the complainant stated that he contacted the VHI and asked that his contributions be put in his personal name as opposed to the Group Scheme if the respondent did not pay his contribution. According to the respondent the VHI contacted it to know when the complainant left their employment and was told that he was on long term sick leave. The VHI removed the complainant from the Group Scheme and he says that he was not aware of this fact until 26th August, 2002 when so informed by the VHI. There seems to be to have been some misunderstanding between the VHI and the complainant when he contacted them initially and there is no grounds for the allegation of victimisation by the respondent in this respect. I note that the respondent continued to pay the complainant's pension when he was on sick leave and not being paid. Evidence therefore suggests that the respondent would have continued to pay the complainant's VHI contributions had it not been contacted directly by the VHI.
5. DECISION
5.1 In view of the foregoing I find that the Named Company (a) discriminated against Mr. O in terms of Section 6(1) and 6(2)(g) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when it treated a former colleague, suffering from a different condition to the complainant, more favourably than the complainant by allowing him flexibility in his hours worked to avail of treatment for his condition over a 6 weeks period but refusing the complainant's request to return to work on a phased basis over 2 - 3 weeks.
(b) discriminated against the complainant when it failed to provide him with reasonable accommodation in the context of Section 16 of the Employment Equality Act, 1998 to the extent that on his first day back to work he was assigned a project with a deadline, that he was told that he could not have any future contact with clients, that his work would be monitored and that he was not given the opportunity to express his views and/or requirements. I accept the respondent's decision that the complainant was not to have contact with clients, however I find that this should have been for a defined period of time after which the decision would have been reviewed.
5.2 I find that Mr. O failed to establish a prima facie claim of harassment against the Named Company and that Mr. O was not subjected to victimisation in terms of Section 74(2) of the Employment Equality Act, 1998 when he was not paid sick pay and when his VHI contributions were stopped.
5.3 Overall I find that both the complainant and the respondent found themselves in a difficult position for obviously different reasons and I can only sympathise with them both. Having said that, I find that the respondent did endeavour to treat the complainant in a sensitive manner but, in reality, failed to some extent in terms of providing him with reasonable accommodation. I also note that the respondent made every effort to establish the complainant's condition but was constrained in this regard by factors outside its control.
5.4 In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order the following:
(a) that the Named Company pay Mr. O €8,000 by way of compensation for stress suffered as a result of the discrimination.
and
(b) that the senior staff of the Named Company undertake appropriate training in disability issues with the emphasis on the requirements of the Employment Equality Act, 1998.
___________________
Gerardine Coyle
Equality Officer
20th November, 2003
2 UK - EAT - 2003 IRLR 566 (paragraph 26 refers)
3 Equality Officer Decision - DEC-E2002/004 (paragraphs 6.9 to 6.13 refers)
4 Labour Court Determination - EED037
5 UK - EAT - 2002 IRLR 190
6 Labour Court Determination - A Health and Fitness Club and A Worker - 18/02/03 Harassment
7 UK - Court of Appeal - 1958 1 WLR 16
8 UK - EAT - 1992 ELR 831
9 UK - EAT - 2001 - IRLR 719