Sinclair vs Intel Ireland Limited(Represented by Mr. Mallon B.L. instructed by Arthur Cox Solicitors)
1. DISPUTE
1.1 The dispute concerns a claim by Mr. Sinclair that he was discriminated against by Intel Limited on the grounds of gender, marital status, sexual orientation, age, disability and race within the meaning of Section 6 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act. He also makes further allegations in relation to harassment in terms of Section 32(1) of the 1998 Act on two occasions; in relation to the respondent's failure to provide him with reasonable accommodation within the meaning of Section 16(3) of the 1998 Act on two occasions and that he was victimised in terms of Section 74(2) of the 1998 Act on three occasions. The respondent has denied all these allegations.
1.2 Consequently the complainant referred two complaints to the Director of Equality Investigations on 20th January, 2003 and 14th June, 2004 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle,Equality Officer on 16th September, 2003 and 14th June, 2004 respectively 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
extensive submissions from both parties a joint hearing took place on 10th August, 2004.
3. THE CLAIMANT'S CASE
The complainant, in his submissions, makes the following allegations:
3.1 Claim of discriminatory treatment on the grounds of disability Discriminatory treatment on the grounds of disability in terms of Sections 6(1) and 6(2)(g) of the Employment Equality Act, 1998 and contrary to Section 8 of that Act when his performance was rated as "below expectation" due to his 8 days sick leave absence during 2002 including 5 days certified sick absence for a respiratory tract and lung infection.
3.2 Claims of discriminatory treatment on the grounds of gender, marital status, sexual orientation, age and race.
Discriminatory treatment on the grounds of:
(i) gender in relation to 7 appointments
(ii) marital status in relation to 19 appointments
(iii) sexual orientation in relation to 1 appointment
(iv) age in relation to 50 appointments
(v) race in relation to 9 appointments
in terms of Sections 6(1), 6(2)(a), 6(2)(b), 6(2)(d), 6(2)(f) and 6(2)(h) of the Employment Equality Act, 1998 and contrary to Section 8 of that Act in relation both to the procedures adopted in the appointment of these colleagues to promotion positions and also to their appointment to these positions.
3.3 Claims of Harassment
Harassment in terms of Section 32(1) of the Employment Equality Act, 1998 (i) when the Manufacturing Supervisor - Laser (hereinafter referred to as Mr. A) spoke on the telephone about the complainant in a derogatory manner to a colleague in the UK (who had previously been the complainant's supervisor).
(ii) when the Manufacturing Shift Manager - Shift C and the Manufacturing Supervisor QML/ILine (hereinafter referred to as Mr. B and Mr. C respectively) issued an instruction to the Manufacturing Supervisor GAS/AWX (hereinafter referred to as Mr. D) (the complainant's supervisor) that the complainant was to stay out of the Litho-QML work area.
3.4 Failures by respondent to provide reasonable accommodation
Failure by the respondent to provide reasonable accommodation in terms of Section 16(3) of the Employment Equality Act, 1998 when
(i) the complainant requested a transfer to work in an equivalent position where company policy is followed in relation to promotional opportunities.
(ii) the complainant was asked by Mr. B not to attend the workplace to submit sick certificates but to submit them by post.
3.6 Claims of victimisation
Victimisation in terms of Section 74(2) of the Employment Equality Act, 1998 when
(i) the Manufacturing Supervisor - FAB 24 (hereinafter referred to as Mr. E) who was allegedly responsible for hiring persons to the area known as FAB 24 did not select him (the complainant) because he (the complainant) had made a reference to him (Mr. E) in his (the complainant) submissions.
(ii) Allegation against Mr. C, Mr. A and Mr. B in the complainant's submission of 15th January, 2004 and against the Production Manager (hereinafter referred to as Mr. F) and Mr. B in the complainant's submission of 4th August, 2004.
(iii) Mr. B discontinued the payment of his shift allowance during his lengthy sick leave absence despite giving an undertaking not to reduce his salary while he was absent on sick leave.
4. THE RESPONDENT'S CASE
In its submissions the respondent has denied that it discriminated against the complainant in respect of any of the allegations made by him. In relation to each of the allegations as set out at 3 above it makes the following points:
4.1 Claim of discriminatory treatment on the grounds of disability
According to the respondent the complainant appealed the outcome of FOCAL 2003 in which he had been rated "Below Expectation" using the respondent's "open-door" appeal system. A Senior Employee Relations Adviser heard the appeal and rejected the complaint of disability discrimination. However he found that rating of "Below Expectation" could not be justified on attendance records alone and having examined the complainant's performance he concluded that there was insufficient evidence of a decline in performance to justify a "Below Expectations" rating. He recommended that the complainant's 2002 rating be upgraded to "Successful" with immediate effect. He further decided that the complainant should not receive a grade increase arising out of the alteration of his rating but he did receive stock options in line with other technicians rated "Successful". The complainant had made reference to a colleague who had more sick leave than him and yet he had received a promotion. The respondent noted that the promotion of this person was warranted on the basis of his contribution within the team the preceding year. For the previous two years his contribution had been ranked as being in the top quartile in his FOCAL reviews as compared with the complainant whose contribution had been ranked in the second and third quartiles in the same period. The respondent also contends that the complainant has failed to establish a prima facie claim of disability discrimination and cites from two cases in this regard2.
4.2 Claims of discriminatory treatment on the grounds of gender, marital status, sexual orientation, age and race
According to the respondent gender, marital status, sexual orientation, age and race have no relevance to the process of assigning Manufacturing Technicians to different positions or to the process of promoting employees into supervisory positions. The processes are described in detail in Appendix A. The respondent denies that the complainant was told by his former Manufacturing Supervisor QML/ILine that his age was a bar or impediment to his promotion or otherwise relevant. The respondent submits that the complainant has failed to establish a prima facie claim of discrimination on the grounds of gender, marital status, sexual orientation, age or race. The respondent denies the complainant's allegation that the respondent's FOCAL performance review system is discriminatory or operates in a discriminatory manner. According to the respondent it stands over the fairness and nondiscriminatory nature of the FOCAL process.
4.3 Claims of Harassment
The respondent states, in relation to the two allegations of harassment, as follows:
(i) The respondent notes that the complainant does not contend that Mr. A was aware of the complainant's presence at the time the call was made. On this basis the respondent says that Mr. A was not seeking to harass the complainant and it argues that it cannot be reasonably contended that Mr. A was offensive, humiliating or intimidating towards the complainant. The respondent accepts that Mr. A did contact a colleague in the UK, who had been the complainant's supervisor, seeking information in relation to this claim. The person in the UK was contacted by the complainant to give his version of the telephone conversation and he refused to accept that Mr. A made adverse comments about the complainant. He stated as follows "I can understand that by overhearing a conversation about yourself, and only hearing one side can lead to a misunderstanding, but I did not get the impression [Mr. A] was trying to belittle, or demean you, he was asking me for help, and we had a great deal of laughter/banter during the conversation (mostly at my expense)". The respondent notes that the incident was investigated internally which the complainant had the right of appeal but he opted to refer the incident to the Equality Tribunal. The respondent requests the Equality Tribunal to reject this allegation of harassment.
(ii) According to the respondent both Mr. B and Mr. C observed the complainant, on numerous occasions, in conversation with several employees in the Litho area outside of break times. The complainant was working in Etch at this time and it was considered that he was disturbing the work of another area outside normal break times. Consequently Mr. B raised the matter with the complainant's supervisor (Mr. D) and the complainant was told not to be in another work area unless he had work-related reasons to be there. The respondent submits that this is not a "barring" as alleged by the complainant, but is precisely the same treatment which any other employee observed in similar circumstances would receive.
4.4 Failures to provide reasonable accommodation
In relation to the two allegations relating to reasonable accommodation the respondent makes the following responses:
(i) The respondent denies that the complainant sought a transfer within the IFO Manufacturing Department out of his then area of work namely Litho prior to making his allegation that the respondent had failed to provide reasonable accommodation in this regard. According to the respondent the complainant expressed interest in three Equipment Technician (MTE) positions within the Manufacturing Department to Mr. C (with Mr. A in attendance as mentor) at a meeting on 25th October, 2003. Then on 13th November, 2003 the complainant withdrew his expression of interest in these positions. Another meeting between Mr. C and the complainant took place on 31st October, 2003 and the complainant did not seek a transfer out of Litho or out of Manufacturing. A further meeting took place on 14th November, 2003 attended by Mr. C, Mr. A and the complainant at which concern was expressed about the complainant's level of absence from work during the second half of the year which amounted to the equivalent of 13 shifts in the second half of the year. The complainant was advised that if this level of absence continued it might impact on his FOCAL 2003 and the respondent says that in this way the complainant was treated no differently to any other employee in similar circumstances. The complainant sought a transfer out of Litho and out of Manufacturing at this meeting. According to the respondent Mr. C and Mr. A did not have the authority to grant this request and the complainant was told that they would revert to him on this matter. The respondent notes that the complainant did not state that he wanted a transfer "on a temporary basis to another functional area or that some relatively simple action to be taken to allow [him] to continue working on Shift C". Further meetings took place on 20th and 21st November, 2003. At the second of these meetings the complainant was advised by Mr. C and Mr. A that he was entitled to apply for any posted jobs. The respondent says that the complainant made no request for a temporary transfer at that meeting. It is the respondent's contention that the complainant did not at any time seek from Mr. C or Mr. A the accommodation he cites in his letter of 27th December, 2003 to Mr. B. The respondent states that it is aware of no case where another member of staff who suffered from certified stress was, for that reason, afforded reasonable accommodation. According to the respondent Mr. B offered the complainant a transfer out of Litho but within the Manufacturing Department so as to remove him from Mr. C's team when he (the complainant) had expressed difficulty in working with Mr. C and the complainant declined that move. The respondent says that when Mr. B became aware that the complainant was seeking an alternative position within the shift (as distinct from a transfer out of Manufacturing) he responded positively on 7th and 21st January, 2004 by offering him a position in the Etch Department on the same shift. It is the respondent's contention that it did not discriminate against the complainant by failing to provide reasonable accommodation as alleged.
(ii) With regard to the complainant's allegation of "suspension" the respondent notes that "an unpleasant scene" occurred when the complainant attended the place of work even though he was on sick leave from work. In these circumstances the respondent states that Mr. B was justified in saying that "it would be best all around" if the complainant forwarded his sick certificates by post rather than attend the workplace while on certified sick leave. It is the respondent's contention that Mr. B's suggestion falls considerably short of "suspension" and the respondent denies that the complainant was at any time suspended. In the event of him being suspended his badge would have been requested and his site access revoked. The respondent asks that this allegation be rejected.
4.5 Claims of victimisation
The respondent made the following points in relation to the four allegations of victimisation which were made by the complainant:
(i) The respondent notes that Mr. E was the complainant's supervisor for an eight week period in November and December, 2001 and for a short period in 2002. He moved to FAB 24 in June, 2003 and in July, 2003 he was asked to become involved in FAB 24 reassignments when his predecessor in that role was absence from work on leave. The respondent states that the role was to arrange for the transfer to FAB 24 of IFO employees who had previously been selected for or volunteered for transfer. According to the respondent Mr. E, when he was a supervisor in IFO, had nominated people supervised directly by him for transfer to FAB 24. When he acted as supervisor to the complainant he did not put any names (including the complainant's name) forward from the complainant's group for transfer to FAB 24. It is the respondent's contention therefore that any failure on the part of Mr. E to put the complainant's name forward occurred about 17 months before the complainant made his complaint under the 1998 Act. On this basis the respondent submits that Mr. E's failure to put the complainant's name forward cannot be said to be victimisation of the complainant for filing his complaints. The respondent further states that Mr. E first became aware that his name was mentioned by the complainant in his submission of May, 2003 in October, 2003 when the respondent's legal representative instructed its client to inform Mr. E of the allegations so that Mr. E could be interviewed as part of the process of responding to the allegations. According to the respondent Mr. E denies that he "changed his attitude" towards the complainant at any time and he says that he has had no dealings with the complainant since he moved to FAB 24 in June, 2003. The respondent further denies that Mr. E offered a female colleague a re-assignment to FAB 24 at a house party in September, 2003. This person indicated to Mr. E that she was seeking a change within the respondent organisation and Mr. E told her that if she was interested in being considered for any position in FAB 24 she should let her supervisor know. The respondent denies that Mr. E offered this person a position in FAB 24 or any overseas assignments. The respondent contends that the complainant has failed to establish a prima facie claim of victimisation.
(ii) The respondent denies these allegations.
(iii) The respondent denies that it victimised the complainant for having made further submissions to the Equality Tribunal when it discontinued his shift allowance. According to the respondent Mr. B advised the complainant of the decision to withdraw the shift
premium from his sick pay by letter dated 23rd February, 2004. The respondent says that Mr. B was not aware of the further submissions to the Equality Tribunal at the time he wrote to the complainant in the matter. On this basis the respondent contends that the complainant was not treated in an unfavourable manner by comparison with others. Furthermore the respondent notes that it is only in exceptional circumstances that shift premium (which is paid for working unsocial hours) is paid for sick absence after the first four weeks of absence and in the complainant's case it was paid for 13 weeks before it was withdrawn. The respondent asks the Equality Tribunal to reject this allegation of victimisation.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was discriminated against by the respondent in terms of all of the allegations set out at paragraphs 3.1 to 3.6 above. In making my decision in this claim I have taken into account all of the information, both written and oral, made to me by the parties.
5.2 Claim of discriminatory treatment on the grounds of disability
It is the complainant's contention that he was discriminated against on the grounds of disability when his performance was rated "below expectation" in his performance review for the period from January to December, 2002. He notes that he had 8 days sick leave absence during this period of which 5 days related to certified sick absence for a respiratory tract and lung infection. Disability has been defined in the Employment Equality Act, 1998 as meaning:
"(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".
The complainant has alleged that his 5 days certified absence from work on the basis of a respiratory tract and lung infection is a disability within the meaning given to disability under the Employment Equality Act, 1998. According to the complainant he had suffered from an acute chest infection which could have developed into pneumonia. He was prescribed antibiotics because there was a malfunction of some part of his body. The respondent held that the definition of disability was very wide but it could not be taken to include a respiratory tract and lung infection. It is the respondent's submission that an argument cannot be made that an infection of this nature is covered by (b) of the definition of disability above because it is not a chronic disease or illness. According to the respondent if the definition was to include this infection it would be illogical as every person could argue that they suffer from a disability under the terms of the Employment Equality Act, 1998.
5.3 The argument made, in this regard, by the respondent was made at the hearing of this claim and the complainant contended that I could not take this argument on board as it had not been submitted in writing in advance of the hearing. This argument was made because I had not allowed the complainant to submit a document at the hearing of this claim which, I deemed, was unrelated to the allegations as set out in paragraph 3.1 to 3.6 above. I pointed out to the complainant that I would be addressing the issue of whether or not a respiratory tract and lung infection came within the definition of disability under the 1998 Act regardless of whether or not it had been raised by the respondent.
5.4 Based on the definition of disability I find that the complainant had a disability as a respiratory tract and lung infection could be deemed to be a malfunction of a part of a person's body in terms of Section 2(c) of the 1998 Act. I note that one of the aspects of performance assessment is attendance and the respondent in its company literature expects a high level of attendance from its employees. Having said that there is no evidence to support the complainant's contention that his performance assessment was marked down solely because of his level of sick leave and that he was treated less favourably on the grounds of his disability. I find therefore that the complainant has failed to establish a prima facie claim of discrimination on the grounds of disability.
5.5 Claims of discriminatory treatment on the grounds of gender, marital status, sexual orientation, age and race
The complainant has alleged that he was discriminated against by the respondent on the grounds of his gender, marital status, sexual orientation, age and race when he was not offered a position of MTE, MTP or Supervisor. In making this allegation the complainant cites a number of appointments and says that he was discriminated against by the respondent as follows:
(a) gender in relation to 7 appointments,
(b) marital status in relation to 19 appointments,
(c) sexual orientation in relation to 1 appointment,
(d) age in relation to 50 appointments,
(e) race in relation to 9 appointments.
The complainant has further alleged that the procedure adopted by the respondent to fill these vacancies is not open and transparent. The respondent has denied these allegations.
5.6 At the hearing of this claim the respondent stated that in relation to these 50 appointments the complainant has identified some characteristic (i.e. gender, marital status, sexual orientation, age and race) which distinguishes him from each of the appointees and on this basis has alleged that he was discriminated against on the basis of the characteristic. Of the 50 appointments 7 were female. There is no evidence that the difference in their gender was the reason for their appointment instead of the complainant. The allegation in terms of martial status is that the complainant is single and 19 of the appointees were married. On this basis the complainant alleges that he was discriminated against on the grounds of his marital status. I note that 31 of the appointees were of the same marital status as the complainant and I am satisfied that there is no evidence to support the allegation of discrimination on the grounds of marital status. As one appointee was of a different sexual orientation to the complainant this does not show that the complainant was discriminated against on the grounds of his sexual orientation. In terms of age it is clear that the complainant has no evidence to prove that age was a factor in the decision to appoint any of 50 appointees. When asked for the ages of the 50 appointees the complainant responded as follows:
"insertions with regard to the age of each individual ...are approximations, based exclusively on what I consider is the approximate age of each individual. It may be a case, where a small number of individuals, may be the same age as myself (28 years old), as distinct from being of a different age than myself, and if this transpires to be the case, and where there is no other discriminatory ground cited by me in relation to this individual, I will withdraw that particular allegation. In the meantime, as I am not aware of the exact age of each person who was promoted to MTE and MTP posts, and on that basis, no proper comparison is possible at this juncture, as the complainant in this matter, I must consider that the allegation on the age grounds must stand, however I consider that this may only be the case in relation to possibly five appointments mentioned".
I am not satisfied that the complainant has established a prima facie claim of discrimination on the grounds of age. I note that the respondent has indicated that a person is appointed to a vacant position following an expression of interest by that person and having regard to that person's performance. Finally there is an allegation of discriminatory treatment on the grounds of race in relation to 9 appointments. However I note that there were 41 appointments where the persons appointed were of the same colour, nationality or national or ethnic origin as the complainant. There is no evidence to support a contention that these 9 appointees were appointed because of their colour, nationality or national or ethnic origin.
5.7 It should be noted that the complainant was offered an appointment to a MTE position in 2000 in a different work area working the same hours as before and getting the same allowances as before. The complainant initially accepted this offer but a change in work hours and the loss of the shift allowance compelled him to forego the MTE position and return to his former work area as a MTO position where he would receive the shift allowance. In July, 2001 the complainant in his FOCAL review indicated his desire for a MTE or a MTP position but he says that this was not offered despite his request. It was open to the complainant to use the respondent's "Open Door" Appeal procedure to establish why his request had not been acted upon but he failed to do so. Then in May, 2002 the complainant made a written request to get onto the Supervisor's Grooming Programme but this did not happen. Again it was open to the complainant to raise this failure on the part of his supervisor by way of the respondent's "Open Door" Appeal procedure but he again failed to do so.
5.8 The complainant has alleged that the respondent failed to follow its guidelines in relation to the filling of internal vacancies. Under these guidelines all vacant positions are advertised on the internal 'jobs online' system and all applicants are assessed and those meeting the criteria interviewed. According to the complainant all he requests is an open and transparent system where he is informed about vacancies and has the opportunity to apply for them. Under the existing system he is not aware of when vacancies are likely to arise and only hears of them when someone is appointed. At the hearing of this claim the respondent accepted that a person could express an interest in being considered for a position as MTE, MTP or a position on the Supervisor Grooming Programme but if their supervisor did not like the person, for whatever reason, the supervisor could decide not to steer that person in the direction of ultimately enabling them to take up one of these positions. The respondent stated that it would then be open to the person making the request to utilise the "Open Door" Appeal process. The respondent also noted that a move to MTE or MTP was not considered a promotion. The only promotion was to that of Supervisor. While this may be the case I consider a move to MTE or MTP is a development opportunity for a MTO. I accept the complainant's contention that the appointment procedure adopted in the IFO Manufacturing area in the respondent organisation is not transparent. It could possibly contain a high element of favouritism and is open to all sorts of allegations including allegations of discrimination. Therefore I recommend that the respondent follow its guidelines and advertise vacant positions for MTE and MTP, assess applicants on the basis of defined criteria, operate a short listing process if necessary and carry out interviews of either all applicants or those meeting the criteria adopted for the short listing process. The interview process should be open and transparent and records of questions asked, notes taken at interview and marking schemes adopted should be retained in the event of any dispute following the outcome of the interviews. There should also be a formal application and interview method for technicians seeking access to the Supervisor Grooming Programme. I note that an interview process exists when a vacant supervisor position arises and eligible candidates on the Programme can apply and be interviewed for the supervisor position.
5.9 Claims of harassment
The complainant has alleged that he was harassed in terms of Section 32(1) of the Employment Equality Act, 1998 when Mr. A spoke to a colleague in the UK (who had previously been the complainant's supervisor) by telephone about the complainant in a derogatory manner. The respondent has denied the allegation. I note that the complainant has not indicated on what grounds under the Act he was harassed. Furthermore the complainant at the time of the alleged harassment was out of work on sick leave and should not have been in attendance at the workplace. Mr. A was not aware of the complainant's presence when he made the telephone call to his colleague in the UK and the complainant only heard one side of the telephone conversation. The person receiving the telephone call denied to the complainant that Mr. A was derogatory of the complainant (see paragraph 4.3(i) above). Therefore I am not satisfied that the complainant was harassed by Mr. A within the meaning of the 1998 Act as alleged.
5.10 The complainant has also alleged that he was harassed by the respondent when Mr. B and Mr. C asked his current supervisor to instruct him not to enter a particular Litho-QML work area unless he did so for work-related reasons. Again there is no indication on what grounds under the 1998 Act he was harassed. I consider that this was a valid request by Mr. B and Mr. C and I do not accept that it constitutes harassment in terms of Section 32 of the 1998 Act as alleged.
5.11 Failures by the respondent to provide reasonable accommodation The complainant has alleged that the respondent has failed to provide him with reasonable accommodation in terms of Section 16(3) of the Employment Equality Act, 1998 when he requested a transfer to work in an equivalent position where company policy is followed in relation to promotional opportunities and again when he was asked by Mr. B not to attend the workplace to submit sick certificates. The respondent has denied these allegations.
5.12 The reason that the complainant has alleged that the respondent failed to provide reasonable accommodation was because he was absent from work as a result of stress. It is the complainant's contention that the respondent did not undertake to do anything to alleviate this stress to allow him to return to work. I am satisfied that stress is a disability under the definition of disability as set out in the 1998 Act3. The respondent has submitted that the complainant sought a move out of Litho and out of Manufacturing at a meeting with Mr. C and Mr. A on 14th November, 2003. He was advised that his request was beyond their authority and they would have to make enquiries and revert to him. The complainant then went on sick leave on 21st November, 2003. In a letter to Mr. B on 27th December, 2003 the complainant alleged that on 20th November, 2003 he had "specifically requested that I be transferred on a temporary basis to another functional area, or that some relatively simple action be taken to allow me to continue working on Shift C, but not directly with so many individuals who I felt had been given preference for promotional opportunities over me". I have examined the reports of meetings submitted by the respondent in relation to meetings between Mr. C, Mr. A and the complainant on 14th, 20th and 21st November, 2003. I am satisfied from this examination that there is a request by the complainant for a move out of Litho and out of Manufacturing on 14th November, 2003. There is no evidence that the complainant specifically requested a temporary transfer to another functional area or that he requested some simple action to be taken to enable him to continue working on Shift C but not directly with any individual who had been given preference for promotional opportunities. On 27th December, 2003 the complainant alleges that the respondent has failed to provide him reasonable accommodation on the basis of a specific request he made. However I am satisfied that there is no evidence of any specific request being made as alleged and I find that Mr. C and Mr. A could not have accommodated the complainant in the manner sought on 27th December, 2003 when they were unaware of his wishes.
5.13 It is notable that Mr. B had suggested to the complainant in October, 2003 that he move out of Litho to another area in Manufacturing when he expressed difficulty working with Mr. C as his supervisor but the complainant declined the offer. Furthermore when the complainant wrote to Mr. B on 27th December, 2003 requesting a transfer out of Litho, to another area in Manufacturing continuing to work on Shift C Mr. B responded positively on 7th January, 2004 and again on 21st January, 2004 by offering him a position in the Etch Department on the same shift. The complainant did eventually (late April, 2004) accept this offer. On the basis of the foregoing I am satisfied that the respondent did not fail to provide the complainant with reasonable accommodation on the basis of his allegation on 27th December, 2003 as there is no evidence to support his contention that the accommodation sought on 27th December, 2003 had already been sought in November, 2003 before he was out of work on certified sick leave.
5.14 The complainant has also contended that the respondent failed to provide him with reasonable accommodation when he was directed by Mr. B not to attend at the workplace to submit sick certificates but to submit them by post. I do not consider this to be an issue of reasonable accommodation which the respondent has to answer. The complainant was absent from work on certified sick leave and in those circumstances he should not have been present at his place of work in circumstances where he was deemed medically unfit to attend work. It is clear that the difficulty that arose on 13th December, 2003 when the complainant overheard Mr. A on the telephone to a colleague in the UK motivated Mr. B to request the complainant not to attend the workplace in future with sick certificates. However Mr. B could reasonably have made this request of the complainant at any time before the incident on 13th December, 2003. Furthermore I do not accept the complainant's contention that this request was effectively suspension.
5.15 Claims of victimisation
The complainant has alleged that Mr. E was responsible for hiring persons to FAB 24 and he did not select him because the complainant had made references to Mr. E in his submissions. At the hearing of this claim the complainant stated that Mr. E attitude towards him changed around June/July, 2003 shortly after he had made reference to him in his submission in May, 2003. The respondent says that Mr. E was not responsible for hiring persons to FAB 24. If vacancies arose in the FAB 24 area Mr. E would check with the supervisors in the Manufacturing area to see if any of their staff members had indicated an interest in moving to FAB 24. Persons interested and deemed suitable were then moved to FAB 24 and according to the respondent the decision was not one for Mr. E to make. The respondent states that Mr. E only became aware that his name was mentioned in the complainant submission to the Equality Tribunal in October, 2003 when, on the instruction of the respondent's representatives, Mr. E was informed so that he could be interviewed as part of the process of responding to the complainant's allegations. According to the respondent Mr. E moved to FAB 24 and had no dealings with the complainant thereafter.
5.16 I am satisfied that the complainant has provided no evidence to support his contention that Mr. E's attitude changed towards him after he named Mr. E in his submission to the Equality Tribunal in May, 2003. I find that the complainant has failed to support his allegation of victimisation in this regard.
5.17 On 15th January, 2004 the complainant made a further submission in this claim and alleged that he had been subjected to victimisation by the respondent. He named Mr. C, Mr. A and Mr. B as the source of this victimisation and subsequently in July, 2004 Mr. F was added to this list. It was not clear to me the nature of this allegation of victimisation and despite the response from the respondent it was still unclear to me. At the hearing of this claim I sought to have it clarified. The complainant accepted that he could see my difficulty in understanding his meaning in relation to this allegation and he stated that, having brought his claim, the position of these people hardened and had they had any inclination to change the procedure for making appointments a decision was made to maintain the 'status quo' and not advertise and interview for vacant positions. According to the complainant these people displayed a degree of arrogance when they gave preferential treatment to another member of staff by appointing them to a vacant position and by refusing to inform the complainant of the fact that a vacant position existed. I find that there is no evidence to support this contention by the complainant, rather this is
supposition on his part.
5.18 The complainant contends that he was victimised by Mr. B when Mr. B wrote to him on 7th January, 2004 stating that he would remain on full pay until he returned to work from sick leave and then told him on 16th February, 2004 that his shift allowance would be deducted with effect from last week. The respondent denies this allegation and points to the fact that Mr. B wrote to the complainant on an unknown date in December, 2003 but clearly before Christmas informing him that the respondent's pay policy was that the complainant was entitled to paid full salary for up to 26 weeks and shift pay would be removed after 4 weeks of absence.
5.19 Having examined all of the documentation relating to the pay issue I am satisfied that it is clear that the term "full salary" relates to the complainant's salary exclusive of shift pay. On this basis the complainant, rather than being victimised, was actually treated very favourably by the respondent as his shift pay was not removed after 4 weeks of absence but after 12 weeks of absence from work. I find that the complainant has no claim of victimisation in this regard.
5.20 In conclusion therefore I am satisfied that the complainant has failed to establish a prima facie case of discrimination on the grounds of disability, gender, marital status, sexual orientation, age and race. I find that the evidence does not support claims of harassment, failure by the respondent to provide reasonable accommodation and victimisation as alleged. I find that the procedure adopted by the respondent to appoint staff to MTE and MTP positions and to grant access to technicians in IFO Manufacturing to the Supervisor's Grooming Programme is not open and transparent and because of this the respondent is exposed to allegations of discrimination, as in this case. I have not found that the complainant was discriminated against by the respondent in this claim however I recommend to the respondent that it adopt open and transparent procedures in the appointment of staff to MTE and MTP positions and in the granting of access to the Supervisor's Grooming Programme for example advertising positions and holding interviews as outlined in their own policy guidelines.
6. DECISION
6.1 In view of the foregoing I find that Intel Ireland did not discriminate against Mr. Ultan Sinclair on the grounds of disability, gender, marital status, sexual orientation, age and race in terms of Section 6 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act. I further find that the respondent did not subject the complainant to harassment as alleged in terms of Section 32 of the 1998 Act. In terms of the alleged failure by the respondent to provide the complainant with reasonable accommodation in terms of Section 16(3) of the 1998 Act I find that the evidence did not support this allegation. Finally I find that the complainant was not subjected to victimisation in terms of Section 74(2) of the 1998 Act for having sought redress under the 1998 Act in good faith.
6.2 I recommend that the respondent put in place open and transparent procedures for the appointment of staff in IFO Manufacturing to positions of MTE and MTP and for the granting of access to staff to the Supervisor's Grooming Programme. This could be done by way of advertising the vacant positions, conducting interviews and retaining notes from interviews for inspection in the event of a complaint of discrimination.
______________________
Gerardine Coyle
Equality Officer
26th August, 2004
APPENDIX A
Procedures for appointing staff in IFO Manufacturing
Intel's semi-conductor and manufacturing operations are carried out in two separate manufacturing units of which the longer established unit is known as IFO which employs c. 1,650 employees. It is the procedures followed in Manufacturing - IFO that is of concern in this claim. Within IFO staffing for technician grades is arranged by reference to Grades 40 - 48 (excluding Grade 47). Technicians are also categorised as Manufacturing Technician Operators (MTOs), Manufacturing Technician Equipment (MTEs) and Manufacturing Technician Process (MTPs) depending on the type of work to which they have been assigned. Dependent on the performance of each employee and the business need/ model, employees may progress up the grades. This is known as securing a "grade increase". With a grade increase comes a consequential salary increase. A technician may join Intel as a MTO, a MTE or a MTP depending on qualifications and previous experience. A technician who joins as a MTO and is interested in becoming a MTE or a MTP begins the process by first expressing an interest to his or her supervisor. Following an expression of interest a MTO is given an opportunity by the supervisor to expand his or her skills to include relevant MTE/MTP skills and is encouraged to acquire the necessary relevant experience and to complete relevant Intel certification courses. Once the MTO has acquired both the experience and the certification, and exhibited same, he or she will then be considered for suitable Equipment or Process positions as they become available. Within IFO the normal promotional progression from technician grades to a manager grade is to the position of supervisor. A technician who wishes to progress in this way as part of their development is expected to indicate an interest to his or her supervisor as part of regular "one-on-one" meetings. Intel employees are informed that they 'own' responsibility for their own development within the company. In addition employee development is specifically addressed in the annual performance appraisal process. Once an employee has expressed an interest the supervisor then has responsibility to work with the employee to seek opportunities for leadership and development in line with the business requirements of the department. If, during these opportunities, the employee demonstrates a suitable level of development, the employee is selected to go on the Supervisor Grooming Programme. This is not a promotion and is not accompanied by any grade or pay increase. Rather it is a programme for the technicians above the grade of 44, with specific qualifications attained already, and whose supervisor has already concluded that they have demonstrated the necessary potential leadership skills, to progress to the position of supervisor. Technicians who are on the programme are given a list of classes which they should attend and the shift manager has responsibility for ensuring that the employee receives further leadership experience and opportunities. Details of the programme, including who is eligible and what it involves are posted on Intel's intranet known as "Circuit" available for all employees. If a vacancy arises subsequently for a supervisor, the relevant shift manager will ask the existing supervisors who of those who are on the Supervisor Grooming Programme are now ready to be considered for supervisor. The shift manager will then conduct interviews amongst the suitable available candidates. For most internal vacancies Intel posts the positions online first. These positions are available to all suitably qualified Intel employees subject to the approval of their manager and business requirements in their departments. This process is not used for promotion of Manufacturing Technicians to supervisor. Promotion to the position to supervisor in IFO is confined to serving Manufacturing Technicians who have completed the Supervisor Grooming Programme. The Supervisor Grooming Programme specifically enables Manufacturing Technicians to progress outside the manufacturing grades to positions of people responsibility. Historically IFO supervisor vacancies were posted internally but it was found that there were no applicants from other departments. Accordingly it was determined that the best way of meeting the business need in filling the vacancies appropriately was by selecting candidates from the group of IFO technicians who had already completed the Supervisor Grooming Programme as they were most likely to have acquired the necessary leadership experience and completed the appropriate Intel courses.
2 Equality Officer Decisions- A Complainant v The Civil Service Commissioners - DEC-E-002-015 and A Complainant v A Department Store - DEC-E-2002-017
3 Equality Officer Decision - Mr. O v A Named Company - DEC-E-2003/052