PARTIES
MR. A
AND
A LOCAL AUTHORITY
(REPRESENTED BY MS. MARGUERITE BOLGER BL
INSTRUCTED BY BCM HAMBY WALLACE - SOLICITORS)
1. DISPUTE
This dispute involves a claim by Mr. A that he was discriminated against by A Local Authority on grounds of gender and disability, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, in respect of the manner in which it conducted a promotion assessment of him on a number of dates in April and May, 2004. Given the sensitive and personal nature of the allegations involved in this claim and the fact that the complainant may well resume his employment with the respondent in the future - he is currently on a career break - it has been decided to withhold the names of the parties involved.
2. BACKGROUND
2.1 The complainant is employed as a firefighter by the respondent. In March, 2003 he applied for promotion to the position of Sub Officer. He alleges that the respondent discriminated against him on grounds of disability and gender in relation to the "On Station Assessment" element of the selection process for promotion to that level. The respondent rejects the allegations and states that the assessment process was conducted in an objective fashion and there are factors unconnected with the discriminatory grounds cited which gave rise to the marks awarded to him.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 20 September, 2004. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a Hearing of the complaint took place on 18 May, 2006. A small number of points arose at the final hearing which required further clarification and the final correspondence in this regard was received by the Equality Officer on 11 July, 2006.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is employed as a firefighter by the respondent for the last twenty years, although he is currently on a career-break. In March, 2003 he applied for promotion to the post of Sub Officer. The selection process involves five separate elements, one of which is the On Station Assessment - the assessment period in question was from 1 October, 2003 until 30 March, 2004. It is this element of the selection process which the complainant takes issue with and alleges that he was treated less favourably than his colleagues on grounds of gender and disability. He states that he attended for his Final Assessment meeting on the night of 27 April, 2004 and was handed an Assessment Form to sign. He considered the marks awarded to him low and queried how they were arrived at. He adds that in the course of this discussion Station Officer X informed him that the following issues were taken into account in reaching his assessment marks - (i) he reported for duty on 26 December, 2003 under the influence of alcohol and was unable to carry out his duties, (ii) he wore non-regulation clothing on duty, (iii) he acted up to Sub Officer without permission, (iv) he failed to file a report for a senior officer by the deadline set and (v) there was a smell of body odour from him.
3.2 The complainant states that he suffers from Acid Reflux - a condition which results in him suffering headaches, nausea and general lethargy when attacks occur - as well as suffering back and neck pain as a result of an accident in March, 1999. He states that he was suffering from an Acid Reflux attack on St. Stephen's Day (26 December, 2003) and was also suffering from neck/back pain when he reported for duty and had taken his medication and some painkillers. He states that he was assigned to the radio room and "things were busy". He adds that he was slow inputting information to the computer system and was reprimanded by Sub Officer K. The complainant states that he excused himself from the room and a short time later he was asked to report to District Officer B's office. He adds that Sub Officer K informed the District Officer he (the complainant) was not performing his duties and was under the influence of alcohol. The complainant states that he denied he was under the influence of alcohol but stated he felt unwell, although he did not elaborate on the nature of his problem nor did inform District Officer B that he had taken medication. He adds that District Officer B told him he was giving him "winter leave" for the evening and that was the end of the matter. He states he was surprised therefore that the incident was taken into consideration in his assessment.
3.3 The complainant states that he only ever wore clothes issued by the respondent whilst on duty and rejects any assertion to the contrary. He also states that it was common practice for him to act as Sub Officer on occasion as he was the senior firefighter on duty but denied that he ever did so without permission. He accepts that there was an incident involving the preparation of a report for a senior officer in relation to turning out an ambulance to a road traffic accident just before Christmas, 2003. He adds however, that he was awaiting certain information which could only be provided by somebody in the respondent's IT Unit. The person with whom he spoke was on annual leave early in 2004 and he had to wait until that person returned to work to acquire the information. The complainant denies that he ever suffered from body odour. He adds that Station Officer X refused to furnish him with specifics of this assertion and submits that the comment would not have been made to a female firefighter. He argues therefore that he was treated less favourably on grounds of gender.
3.4 The complainant states that he spoke with Station Officer X on 9 April, 2004 and in the course of this conversation he informed him that he (the complainant) was on medication for his Acid Reflux condition. The complainant adds that he further informed Station Officer X and two other officers of his condition in the course of the Final Assessment meeting on 27 April, 2004. He contends that Station Officer X and the five other officers who conducted his assessment were aware of his disability and connected circumstances, that the incident on 26 December, 2003 was related to his disability and by taking that incident into account in the assessment process the respondent discriminated against him contrary to the Act. Finally, the complainant states that he invoked the respondent's internal appeal procedure in respect of his assessment marks. His appeal was not upheld and he contends that this decision also constitutes discrimination on the grounds cited.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that it discriminated against him on grounds cited in respect of his assessment. It states, in the first instance, that none of the officers mentioned by the complainant were aware at anytime, up to and including the Final Assessment meeting on 27 April, 2004, that he suffered from Acid Reflux condition and/or he was on medication for same. It adds that no reference of this condition exists on his personnel file or any attendance records retained at station level. It accepts that items (i) - (iv) as set out at paragraph 3.1 above were taken into consideration by the Assessment Panel and submits that it was legitimate and reasonable to have regard to those issues in the evaluation process. It states that the officers assessing the complainant followed its "Guidelines for Assessment of Candidates for Promotion to the Rank of Sub Officer" (a copy of which was furnished to the Equality Officer) which require an evaluation over ten distinct criteria/attributes. In addition, assessment officers completed a two-day training course on how to conduct the assessments. The respondent submits that the assessment process was fair and objective and the complainant was treated in the same manner as all other candidates who underwent the process.
4.2 The respondent states that the complainant reported for duty on 26 December, 2003 in an agitated state and commenced work in the control room. Sub Officer K noticed that the complainant was unable to input the necessary data at the required speed and he confronted him about this issue on a couple of occasions. Sub Officer K then became aware of the smell of alcohol from the complainant and reported his concerns to District Officer B, who was the officer in charge of the station that evening. The respondent adds that the complainant was requested to report to District Officer B's office and when questioned the complainant admitted, in front of both officers, that he had consumed alcohol before coming on duty. District Officer B was able to offer the complainant "winter leave" and decided not to discipline the complainant for his actions given the time of year - and he indicated this to the complainant. The respondent adds however, it was never his intention that the incident would not be included in any promotion assessment of the complainant as it was a serious matter. The respondent adds that the complainant was expected to wear clothing issued by it at all times whilst on duty and he did not do so, he had acted up to Sub Officer without permission and had taken six weeks (an excessive length of time) to furnish a report to a senior officer despite a number of requests. It argues that incidents of this nature would have been taken into account in assessing any of the complainant's colleagues and the fact that this happened in respect of the complainant does not constitute less favourable treatment of him.
4.3 The respondent accepts that Station Officer X made a comment about body odour to the complainant in the course of the discussions on 27 April, 2004. It submits however, that the comment must be taken in context. The meeting was lengthy and quite acrimonious. The complainant continuously pressed for explanations of why he received the marks he did. Station Officer X essentially blurted out in frustration towards the end of the discussion that a complaint had been made against concerning body odour, although it was made quite clear to him that this was not taken into account in his assessment - an assertion that was attested to by Station Officer X and Officer Y in the course of the hearing - and Station Officer X regretted the incident. The respondent rejects the assertion that it would treat a female firefighter different in similar circumstances and submits that the behaviour of Station Officer X does not constitute discrimination of the complainant contrary to the Act. Finally, the respondent argues that no evidence has been adduced by the complainant to support his contention that the internal appeals process was conducted in a discriminatory manner on grounds of gender and/or disability.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of gender and disability in terms of section 6 of the Employment Equality Acts 1998 and contrary to section 8 of that Act, in respect of the manner in which it conducted a promotion assessment of him on a number of dates in April and May, 2004. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties.
5.2 At the time of the alleged incidents the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (1) set out the out the procedural rules to be applied as regards the burden of proof to be discharged by the parties in claims of gender discrimination. This requires the complainant to establish, in the first instance, facts from which it can be inferred that he was treated less favourably on the basis of his gender. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. It is the well settled practice of both this Tribunal and the Labour Court to apply a procedural rule concerning the burden of proof in non-gender claims of discrimination which occurred before the coming into force of the Equality Act, 2004 (18 July, 2004) similar to that applied in gender based claims and I intend to adopt that approach in the instant case.
5.3 I note there is agreement between the parties that items (i) - (iv) as set out at paragraph 3.1 above were taken into account in the assessment process and I am satisfied that it is reasonable for the respondent to take issues of that nature into account in assessing the complainant's suitability for progression to Sub Officer. I am also satisfied that in doing so the respondent treated the complainant no differently than it would have treated any other candidate. The question remains however whether the incident on 26 December, 2003 was connected with the complainant's Acid Reflux condition and him having taken painkillers earlier that day for back/neck pain due to injury or whether it was related to him having consumed alcohol before coming on duty, as contended by the respondent. If the former is true then the respondent may fall foul of the employment equality legislation for taking it into account as part of the appraisal process. If the latter is the situation this would not be the case. At the hearing the complainant stated that he never informed either Sub Officer K or District Officer B of his condition or that he had taken medication that day, although he quite clearly had the opportunity to do so. I find this odd given that the complainant would be aware - he was a firefighter for twenty years - of the potential seriousness of the incident. In addition, each of the officers mentioned above gave evidence at the hearing, independently of each other, of the events that day and both stated that the complainant admitted to having consumed alcohol before coming on duty. Having evaluated the evidence presented by the parties I prefer, on balance, the respondent's version of events. It follows therefore that the respondent was entitled to take the incident into account as part of the complainant's assessment. I note District Officer B's acceptance that he made the comment he "would not take the matter further" and what he intended by that comment was not to discipline the complainant at that time as it was Christmas. It appears to me that confusion existed between him and the complainant as to the exact meaning of this comment and the complainant misunderstood what he meant by it. However, in my opinion this misunderstanding does not give rise to any less favourable treatment of the complainant in the subsequent assessment process.
5.4 The complainant states that he informed Station Officer X of his condition on 9 April, 2004 and submits that he did not take this into account in respect of his assessment of the complainant. This assertion is denied by Station Officer X. The complainant further asserts that he informed Station Officer X and two other officers of his condition in the course of the Final Assessment meeting on 27 April, 2003. Evidence was given by both of these officers at the Hearing, independently of each other, that the complainant did not make those comments and that his assessment was not influenced in any way by the his medical condition as none of the Assessors were aware of it. I note there is no reference to his condition on the complainant's personal file, neither is there any such reference on any attendance records retained at station level. I further note that the complainant did not previously inform District Officer B of his condition in the course of the incident on 26 December, 2003 - an incident that could have had very serious disciplinary consequences for the complainant. I am therefore satisfied, on balance, that the Assessors did not know of the complainant's condition and could not have taken into account in their evaluation of him. I note that the complainant was assessed over ten predetermined criteria/attributes and that all of the Assessors had attended a two day training course on how to conduct the assessments. I am satisfied that the assessment process was conducted in a fair and objective fashion and the complainant was not treated less favourably on grounds of gender or disability in relation to it. Before leaving this point, I would like to strongly suggest to the respondent that some form of record of the assessment deliberations should be made and retained for a minimum of twelve months after the process and secondly, the training courses for the Assessors should include a module on the employment equality legislation. The former would be invaluable to bodies such as this Tribunal and the Labour Court in deliberations on claims of discriminatory treatment.
5.5 The respondent accepts that Station Officer X made a comment to the complainant about body odour in the course of the Final Assessment meeting on 27 April, 2004 but submits that it must be seen in the context of the events at that meeting. It is clear that the meeting was long (the complainant estimated it took three hours) and was heated/strained (the complainant stated that he had to continuously press Station Officer X before he eventually gave him answers). Evidence that this was the case was furnished by Officer Y at the hearing. Whilst I consider the comment made by Station Officer X to be inappropriate I cannot accept the proposition that he would have treated a female firefighter differently in similar circumstances. I am also satisfied, based on the evidence presented, that the issue was not considered by the Assessors as part of the complainant's evaluation. In light of the forgoing I find that the complainant was not treated less favourably on grounds of gender. I would suggest however, given the environment in which the comment was made, that Station Officer X should personally apologise to the complainant for any embarrassment the comment may have caused him. Finally, I find that the complainant has failed to demonstrate that the respondent conducted the internal appeals process in a discriminatory manner.
6. DECISION OF THE EQUALITY OFFICER.
I find that the complainant has failed to establish a prima facie case of discrimination on grounds of gender and disability and his claim must fail.
____________________________
Vivian Jackson
Equality Officer
2 August, 2006
Notes
(1) S.I. 37 of 2001