DEC-E2005-054

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS 1998 - 2004

DECISION DEC-E2005-054

PARTIES

Mr L
(Represented by SIPTU)

AND

A Manufacturing Company
(Represented by IBEC)

File reference: EE/2003/276
Date of issue: 10 November 2005

1. DISPUTE

1.1 This dispute concerns a claim by a complainant that he was discriminated against by his employer on the ground of disability contrary to the provisions of the Employment Equality Acts 1998 - 2004 in the way his clinical depression was dealt with. The complainant also claimed harassment and victimisation.

1.2 The complainant referred a claim to the Director of Equality Investigations on 19 August 2003 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 24 March 2004 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 25 February 2005. Subsequent correspondence with the parties concluded on 15 April 2005.

2. SUMMARY OF THE COMPLAINANT'S CASE

2.1 The complainant was employed by the respondent as a general operative on 30 May 1995. In 2002 he was diagnosed as having clinical depression. His doctor advised him to inform the respondent, which he said he did reluctantly. The complainant said the respondent seemed initially supportive, but that he later felt under considerable pressure at work, ultimately resigning with effect from 21 February 2003.

2.2 The complainant said that he was given a verbal warning on 22 January 2003 for persistent absenteeism and lates, which he accepted as justified at the time. However, he claimed that less than an hour later he was approached by work colleagues who already knew about the warning. A week later the complainant attended the company doctor for a review of his medical condition. He said the meeting was productive and the doctor suggested that he seek a career break.

2.3 The complainant said he met the Human Resources (HR) Manager the next day to discuss his medical appointment. He said that he raised the issue of taking a career break, and also took the opportunity to raise his concerns about how quickly the knowledge of the verbal warning spread to the shop floor. The complainant said the HR Manager seemed genuinely shocked and said she would sort it out.

2.4 The complainant said that about a week later he was not feeling well and was four minutes late for work. He said his Supervisor approached him in an intimidatory manner and reminded him of the verbal warning. The complainant said he told the Supervisor he was ill and he then went home. The complainant claimed that when he returned to work the following day he was met with jibing from his colleagues, together with remarks to the effect that "[complainant's surname] you've had it" and "[HR Manager's first name] is out to get you". These taunts were allegedly accompanied by chopping, hanging and cutthroat gestures.

2.5 The complainant said he learned that the Shop Steward had been called to HR to discuss the situation. He claimed that he was told that HR was "gunning for him" and that there was a "personal vendetta" against him. He said further that he was told that the HR Manager had predicted he would submit a medical certificate covering a few days' sick leave, but that the full disciplinary procedures were going to be followed nonetheless. The complainant also alleged that the HR Manager had indicated the status of his medication to the Shop Steward, in breach of confidentiality.

2.6 The complainant asserted that, in general, any occasions when he was absent from work would be the subject of debate and adverse comment on the shop floor, and his colleagues appeared to know the reasons for his absences. He also said that on one occasion a graph displaying patterns of employee absence was left open on the Plant Manager's desk, where it was seen by one of his colleagues. Taking all of these factors into account, the complainant said he had no other option but to tender his resignation, which he did with effect from 21 February 2003 citing "blatant breach of confidentiality".

3. SUMMARY OF THE RESPONDENT'S CASE

3.1 The respondent said that the complainant had a significant history of timekeeping and absence problems. It said that in 1998 it had sought medical advice in relation to his difficulties with attending work regularly and on time. The advice suggested that improvement would be seen in a timeframe of up to two years. The respondent said that no disciplinary action was taken during this time but it continued to monitor the situation.

3.2 The respondent said that the complainant was reviewed by the company doctor in March 2002, during a period of absence on sick leave. At that point, the doctor's opinion was that the complainant's level of sickness absence would "improve significantly over the coming months". After a further review in May 2002, the doctor said "I would expect a continual improvement in his sickness absence level at work". On 27 May 2002, the respondent received a letter from the complainant's GP, advising that he had made a diagnosis of depression and indicating that "I feel he will be a lot better after three months of further treatment".

3.3 The respondent acknowledged that the complainant sought a career break in January 2003, following a further review by the company doctor, but it said it was made clear at the time that the request was not made on medical advice but that the complainant wanted to consider other career opportunities. Following internal discussion, the request was not granted for operational reasons. The report of the company doctor, received after the complainant's resignation, indicated that the complainant's depression had resolved. The doctor said "From my clinical assessment I do not attribute his continued absenteeism and lateness for work as being attributable to depression".

3.4 The respondent strenuously denied that there was a vendetta of any sort against the complainant, and denied that any comment of this nature was made to the Shop Steward. It said that it had a policy for dealing with absence and time-keeping issues and this policy was not breached in dealing with the complainant. It said he was not in any way treated differently from any other employee, except that the company sought and accepted medical advice on the potential impact of his depression on his attendance.

3.5 The respondent denied that the complainant's verbal warning was discussed with any other members of staff. It said that its disciplinary policy in respect of persistent absence was well known by all employees and suggested that it would be a normal assumption that disciplinary action would follow significant levels of absence.

3.6 The respondent rejected the assertion that the complainant's Supervisor intimidated him. It said he was reminded that there was a verbal warning on file and told of the possible consequences of further lates. Regarding the complainant's allegations of the behaviour of his work colleagues, the respondent said it did not condone gossip or rumour, but suggested that it was possible that his level of absence did give rise to discussion among his colleagues. However, it said that he never made a complaint to his Supervisor or management to allow this to be addressed in accordance with the company's Anti-Bullying and Harassment policy.

3.7 The respondent said that information on levels of absence was of legitimate concern to management, for projection of costs and manning requirements. It said, however, that such information on a manager's desk in his office could not be considered to be publicly available, and that no unauthorised member of staff had permission to read paperwork on a manager's desk. The respondent also stated that the software used to compile absenteeism reports was not capable of producing a graph, as claimed, and suggested that the data as presented would be incomprehensible to anyone unfamiliar with the software.

3.8 The respondent denied that the HR Manager gave any personal or medical information to the Shop Steward. It said the complainant elected to have the Shop Steward present during a meeting with HR, and that any information he had was given to him by the complainant. The respondent said that the HR Manager did have a conversation with the Shop Steward, in the complainant's absence, regarding ongoing union matters. It said that the Shop Steward raised the issue of the current status of the complainant's situation, and the HR Manager said she was not in a position to divulge details of the complainant's medical condition and that the Shop Steward should address such questions to the complainant.

3.9 The respondent concluded that it had not treated the complainant less favourably on the ground of disability, and reiterated that it was the opinion of the company doctor in February 2003 that he was no longer in fact suffering from depression, or from any other underlying illness. It said the complainant was aware of its bullying and harassment policy and had union representation at the time the alleged incidents arose, but never sought to invoke the procedures prior to his resignation. The respondent said that it was a matter for the complainant to establish a prima facie case of discrimination on the ground of disability, and submitted that no evidence had been adduced to substantiate his claim.

4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.

4.2 The complainant alleged that the respondent discriminated against him on the ground of disability contrary to the provisions of the Employment Equality Acts 1998 - 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including disability.
Section 8 provides that
(1)In relation to-
(b) conditions of employment...
an employer shall not discriminate against an employee or prospective employee...

4.3 The complainant's written submission referred extensively to constructive dismissal. By letter of 28 May 2004, the parties were advised that such a claim was proper to the Employment Appeals Tribunal. They were also advised that discriminatory dismissal claims were proper to the Labour Court, as was the case prior to the enactment on 18 July 2004 of the Employment Equality Act 2004. It was confirmed at the hearing that the complainant had not in fact submitted a dismissal claim to either body. As I have no jurisdiction to deal with constructive dismissal, this decision is concerned solely with the complainant's claims of discriminatory treatment, harassment and victimisation.

4.4 In essence, the complainant alleges that he was subjected to both intimidation and breaches of confidentiality. The alleged intimidation comprised: (i) taunting and jibing by his work colleagues; (ii) an intimidatory approach by his Supervisor; (iii) the assertion that there was a personal vendetta against him and the HR Manager was "gunning" for him; and (iv) being threatened with the imposition of full disciplinary procedures. The alleged breaches of confidentiality were: (i) the assertion that his work colleagues were aware of the reasons for his absences; (ii) the claim that the HR Manager discussed his medication with the Shop Steward; and (iii) the claim that a file containing details of staff absenteeism was left open on a manager's desk.

4.5 It appears clear that the complainant's work colleagues would have been aware of his absences and lates, simply from working on the shop floor with him. No doubt being taunted in the manner alleged could be very unpleasant, but the complainant did not adduce any evidence that the conduct was in any way connected with his disability. His own evidence was that he rarely telephoned to say he was ill, but gave excuses such as having car trouble. I note that he did not make a complaint regarding the alleged taunting, and in the circumstances I cannot find that the conduct constituted harassment of him by the respondent.

4.6 The question of intimidation by the Supervisor is a matter of dispute between the parties. The complainant did not make a complaint to management or to the Shop Steward regarding this allegation. The encounter between the two men occurred at a time when the complainant was feeling unwell, and may have been particularly sensitive. In the circumstances, I do not find evidence of harassment of the complainant.

4.7 The complainant's evidence was that the remarks about there being a vendetta against him were made by the HR Manager to the Shop Steward. The Shop Steward attended the hearing as a witness, having been required by me to do so in accordance with the provisions of section 95 of the Act, at the request of the complainant. The Shop Steward denied that any such remark was made to him, and I found his evidence generally to be credible. I am satisfied that no such remark was made.

4.8 It was the Shop Steward's evidence that the HR Manager did indicate that the respondent had been patient with the complainant, but were now going to impose full disciplinary procedures. The HR Manager confirmed that it was intended to issue the complainant with a written warning, but he tendered his resignation before this was done. It was the respondent's contention that the complainant was treated in accordance with its disciplinary procedure, and he was therefore not discriminated against on the ground of disability.

4.9 However, section 16 of the Act imposes a duty on an employer to provide special treatment or facilities for an employee with a disability, unless such provision would give rise to a cost, other than a nominal cost. In considering the nature and extent of an employer's duty in such circumstances in An Employer and A Worker (Mr O) Number1 (Determination No EED0410), the Labour Court said, citing a 2003 decision of the EAT for England and Wales, that it was "authority for the proposition that an employer must make adequate enquiries so as to be in possession of all material information concerning the needs of an employee with a disability before taking decisions which are to the employee's detriment." It is clear that the respondent in this complaint had resolved to impose a disciplinary sanction on the complainant, prior to its receipt of the latest medical report. It was therefore unaware that the company doctor had concluded that the complainant was no longer suffering from depression. Accordingly, I am satisfied that the decision to impose a disciplinary sanction on the complainant at that time constituted less favourable treatment on the ground of disability.

4.10 In relation to the assertion that his work colleagues were made aware of the reasons for his absences from work, I note the complainant's own statement that he rarely cited illness as being a reason for absence. The single specific example he mentioned in evidence was an occasion when he telephoned to say he had a flat tyre and would be late. On his arrival at work, a picture of a flat tyre had been placed at his workstation. In the absence of any further information on the matter, I am unable to consider that this constituted evidence of discrimination on the ground of disability.

4.11 The HR Manager agreed that she had a conversation with the Shop Steward in the complainant's absence, but said she would not have discussed the complainant's medication with him. The Shop Steward, in evidence, said that he had thought it strange when the HR Manager said to him "Do you know [the complainant] has stopped taking his medication?". As previously stated, I found the Shop Steward's evidence to be generally credible. This is not to say that the HR Manager's evidence was not credible, but it would appear possible that she inadvertently said more than she intended, on the understanding that the Shop Steward was aware of the situation. On balance, this would appear to constitute less favourable treatment than would be afforded to someone without a disability.

4.12 The alleged graph of absence levels was the subject of considerable dispute between the parties, the respondent denying that the software was capable of producing a graph. As the complainant had not seen the file himself, it seems possible that it may have constituted a chart or some other form of data. However, he did not request the person who allegedly saw the information to attend the hearing as a witness, so I must find that the allegation regarding the data is hearsay and must be disregarded.

4.13 The complainant alleged that the respondent had victimised him in terms of section 74 of the Act. The relevant part of the section provides that victimisation occurs when penalisation of a complainant is occasioned by a complainant seeking redress under the Act, opposing a act unlawful under the Act, giving evidence in proceedings under the Act or giving notice of an intention to do any of these. All of the matters complained of by the complainant occurred prior to his referral of a claim of discrimination, and therefore do not constitute victimisation as envisaged in section 74.

5. DECISION

5.1 Based on the foregoing, I find that
(i) the respondent discriminated against the complainant contrary to the provisions of the Employment Equality Acts 1998 - 2004 in relation to the decision to impose disciplinary proceedings against him and the revealing of details regarding his medication;
(ii) the complainant was not harassed within the meaning of the Acts; and
(iii) the complainant was not victimised within the meaning of the Acts.

5.2 I hereby order that the respondent pay the complainant the sum of €6,000 in compensation for the effects of the discrimination.

_____________________
Anne-Marie Lynch
Equality Officer

10 November 2005