PARTIES
AN EMPLOYEE (MR. A)
(REPRESENTED BY CONOR POWER B.L.
INSTRUCTED BY THE EQUALITY AUTHORITY)
AND
A THIRD LEVEL EDUCATION INSTITUTION
(REPRESENTED JOHN O'DONNELL S.C.
INSTRUCTED BY IBEC)
1. DISPUTE
This dispute involves a claim by Mr. A that he was discriminated against by the respondent on grounds of disability, within the meaning of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of (i) section 8 of that Act when it evoked its disciplinary measures against him, in particular on 22 November, 2000 and (ii) section16 of that Act when it failed to provide the complainant with a reasonable accommodation.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a Part-Time Library Assistant in August, 1997. In September, 1998 he was appointed to the Full-Time position of Senior Library Assistant. He states that he suffers from a condition called Keratoconus, a progressive eye disorder which results in a decrease in vision. The complainant adds that he also suffers from asthma and in 1998 he was diagnosed as suffering from depression. He contends that from October, 1998 he complained about his working environment to his immediate Line Managers because it had a detrimental effect on his health and that the respondent failed to afford him reasonable accommodation. The complainant also contends that the respondent discriminated against him on grounds of disability contrary to the Act when it applied its disciplinary procedures to him in November, 2000.
2.2 The complainant's legal representative referred a complaint on his behalf to the Equality Tribunal on 22 May, 2001. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer on 28 May, 2001 for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received form both parties and hearings took place on 12 November, 2003. A number of issues emerged at the hearing which required further clarification and gave rise to correspondence in the year subsequent to the hearing. Notwithstanding this the Tribunal acknowledges that there has been considerable delay in issuing this decision and this delay is regretted.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment with the respondent as a Part-Time Library Assistant in August, 1997 and in September, 1998 he was appointed to the Full-Time position of Senior Library Assistant. The complainant states that he suffers from a condition called Keratoconus, a progressive eye disorder which results in a decrease in vision. He adds that he also suffers from asthma and in 1998 he was diagnosed as suffering from depression. He contends that the respondent, through his student enrolment form (1990), which is in the possession of the College Administration Section, would have been aware of his eye disorder. He states that he made the Librarian aware in or around November, 1998 that he suffered from depression. He was unsure whether or not he had ever informed the respondent that he suffered from asthma.
3.2 The complainant states that his role was to provide a range of library services to students with a disability, more particularly to provide brailling services to students with visual impairment. His working environment was originally a link corridor in the library area which has been fitted out for use as a room. The room has no natural light or ventilation and contains around ten pieces of IT type equipment and a Braille machine, which when combined generate a considerable amount of heat and in the latter's case, a considerable amount of noise. The complainant states that as he spent the vast majority of his working day in this room it was impacting adversely on his health - particularly his eye condition and asthma - and that from October, 1998 he complained to both his immediate Line Manager (Ms. B) and her superior (Mr. C) about the working environment. He adds that he reported these difficulties to them on about a dozen separate occasions between October, 1998 and early 2000 to no avail and indeed, during the extension work to the Library in 1999/2000 he identified an alternative room but the respondent considered it unsuitable.
3.3 The complainant states that his doctor diagnosed him as suffering from depression in November, 1998. He contends that his depression was exacerbated by the fact that his work was sporadic and he would sometimes be left with no work to do. As a result of his depression he was off work for most of the period between December, 1998 and February, 1999 on sick leave. At this stage he was attending a Counsellor for his depression, who recommended to him that he should change his working environment and keep busy, although he never communicated this recommendation to the respondent at the time. The complainant states however, that during this period and for the remainder of 1999 he regularly asked Mr. C for more work, to no avail. The complainant states that from December, 1999 he was called to a number of meetings by Mr. C during which, inter alia, the complainant's level of work performance and punctuality were discussed and he was informed that his performance generally required improvement. The complainant states that in February, 2000 he was informed the respondent had accepted a blind student who was following a Ph.D course and as a consequence his workload increased significantly. Although he was relieved to have work to do it was not possible to service all of her requirements and a part-time employee was engaged to assist him. The complainant states that when this assistance finished the same problems resurfaced and he raised the matter of additional resources with Ms. B and Mr. C on a number of occasions but they were not acted upon.
3.4 The complainant states that he received a letter from Mr. C dated 17 August, 2000 in which he (the complainant) was advised that considerable improvement in his work performance was expected and that if such improvement was not forthcoming the matter would have to re-visited. On 14 November, 2000 he spoke with the University's Disability Liaison Officer (Ms. D) about his concerns around what he believed was an inadequate level of service which the University was providing to the blind Ph. D student due to lack of resources in the complainant's area of work. He further states that he met with Mr. C on 16 November, 2000 and it was agreed by Mr. C that additional help was needed in the complainant's area. The complainant adds that he met with both Ms. B and Mr. C on 22 November, 2000 and contends that during the course of this meeting Mr. C made a reference to his eye disorder and told him that he was not capable of performing his duties because he was disabled. The complainant contends that from then on he was consistently discriminated against by Mr. C in that he had to attend weekly meetings and report on all duties carried out by him. He further contends that Mr. C referred to complaints from students about his (the complainant's) performance but would not specify the identities of those students or the nature of the complaints. Mr. C also accused him of tampering with equipment but was not specific about these incidents either. The complainant states that this treatment of him continued for six months until he was forced to go on stress related sick leave from 3 May, 2001.
3.5 The complainant states that he met with the Librarian and Deputy Librarian on 29 November, 2000 and he handed them a complaint form under the Equal Status Act, which he had completed in error. The complainant states that the Librarian undertook to pass this complaint on to the respondent's Human Resource Department. The complainant heard nothing from the respondent about this matter and lodged his complaint with the Equality Tribunal on 22 May, 2001, approximately three weeks after he commenced extended sick leave. The complainant states that he attended an Occupational Health Physician in October, 2001 at the respondent's request, notwithstanding the fact that he was attending his own General Practitioner who had diagnosed him with work related stress disorder and recommended that his condition might be improved by transferring him to another department in the University. The complainant states that the next he heard from the respondent was in March, 2002 when he was requested to attend a meeting with the Human Resources Manager to discuss his allegation of bullying etc. against Mr. C. The respondent refused to allow him have his solicitor at this meeting so he did not attend.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's allegations and in the first instance submits that the claim is out of time as it was referred to the Equality Tribunal outside of the six month time limit prescribed at section 77(5) of the Acts. In this regard it states that the complaint form states the first incident of alleged discrimination to be 22 November, 2000 and the claim was received by the Tribunal on 22 May, 2001, which is outside of the time limit set down.
4.2 The respondent concurs with the complainant's details of when he commenced employment with it. However, it rejects the assertion that it was aware of his eye condition from 1990 as Human Resources would not be privy to information on a student's enrolment form in the first place. It adds that the complainant was not required to undergo, not did he request, a medical examination on his appointment. The respondent states that the first and only time it was made aware that the complainant suffered from Keratoconus was when it appeared on his medical certificate on 6 April, 2000 along with Conjunctivitis as the reason for the absence. The respondent adds it was never advised that he suffered from depression and asthma. It states that there was a reference to "nervous exhaustion" as the reason for a three week absence in early 1999, a reference to "nervous debility" first appeared on medical certificates in May, 2001 when he commenced extended sick leave and that the first time "work related stress disorder" appeared as a reason for his absence was late February, 2002.
4.3 The respondent accepts that there were heating/ventilation problems in the library building generally, which includes the area where the complainant was located and in that regard it commissioned an independent Air Quality Survey which was conducted in three phases between March, 1999 and March, 2000. The result of this survey was that neither the air quality nor deviations in temperature were found to be above the norm. Notwithstanding this a series of measures recommended as part of the process were completed to improve the general area. In addition, the respondent's Health and Safety Advisor conducted an inspection of the complainant's immediate work area and found that the room was within accepted guidelines as regards lighting, ventilation and noise. The respondent states that it was not possible to relocate the Unit where the complainant worked as there was no suitable space available. The respondent further submits, whilst accepting there were several pieces of equipment located in the area, that they would not all be in use at the same time. In addition, it contests the complainant's assertion that much of his day was spent in the area - in its opinion he would have been out around the library generally for a large element of his working day. Finally on this point, the respondent states that the complainant was found on the premises at 10pm on several occasions working on private matters, almost five hours after the end of the normal working day. The respondent submits that this counters the complainant's argument that exposure to the working environment in the course of his normal working day exacerbated his eye condition in particular.
4.4 The respondent rejects the complainant's assertion that his workload was sporadic. It states that he was involved in a large project within the university in November/ December, 1998. It further states that although he spoke with both Ms. B and Mr. C on a number of occasions that he had not sufficient work, this was not the respondent's view of the circumstances at that time. It submits that at a time when the number of students with disabilities attending the university was increasing - with a consequent increase in workload for the Disabilities and Special Needs Unit of the Library - the complainant was not carrying out his functions in a satisfactory manner, instead he was focussing on a small number of students at the expense of others and that this underperformance was a source of concern for the respondent. The respondent submits that a report prepared by the complainant in respect of the Unit (for 1997-1998) supports the proposition that the workload was increasing as he recommends that the Library Assistant post should be promoted form part-time to full-time. In addition, the respondent states that the complainant sought and was granted, additional assistance with the appointment of a student on a part-time basis from 31 January -2 June, 2000 and from November, 2000 -1 June, 2001.
4.5 The respondent (Mr. C) states that he met with the complainant on 15 October, 1999 - just after the start of the new term - to discuss the need to meet the demands of the service provided by the Unit. He adds that in addition to the day to day operation of the service, the complainant would be expected to contribute to the development, revision, promotion and improvement of the service on a continual basis and he fell short on this aspect of the post. The respondent (Mr. C) spoke with the complainant about performance and punctuality on 24 March, 2000. This was followed by a meeting between the complainant and the Librarian 7on 14 April, 2000 when these and other issues were discussed. A further meeting between the complainant and Mr. C took place on 27 July, 2000 and the same issues were discussed. Mr. C wrote to the complainant on 17 August, 2000 by way of follow-up. Another meeting took place on 22 November, 2000 and the complainant's performance was again discussed. Whilst the respondent accepts that the complainant's health problems - in particular his eye condition - was discussed at the meeting it contends it was raised out of concern for the complainant's health in general and a belief that the nature of the work performed by the complainant could have a detrimental effect on his eyesight. Concerns were also raised about the complainant's private, external commercial activities in the publication area. Mr. C states whilst it was agreed at the meeting on 22 November, 2000 that the complainant would meet with him on a weekly basis to report on the week's activities, only 4/5 such meeting occurred and they merely fizzled out.
4.6 The respondent states that it requested the complainant to attend a medical examination as part of its normal procedure for dealing with long-term absence due to illness. The complainant attended the examination in November, 2001 and submitted a report by his own General Practitioner which stated that he (the complainant) was absent from work due to work related stress disorder caused by bullying at work. A number of pieces of correspondence flowed between the complainant and the respondent which culminated in the scheduling of a meeting on 12 March, 2002, which was cancelled and rescheduled. The respondent considered the matter to be an internal one - it contends this was the first time allegations of bullying had been brought to its attention - and it informed the complainant it was not appropriate to have a legal representative present. The
rescheduled meeting did not take place and the matter was never addressed.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are (i) in the first instance, whether or not the complaint was referred to the Equality Tribunal within the six month timelimit prescribed at section 77(5) of the Employment Equality Act, 1998 and I therefore have jurisdiction to investigate the complaint, (ii) whether or not the respondent failed to provide reasonable accommodation to the complainant in accordance with section 16 of the Act and (iii) whether or not the respondent discriminated against the complainant on grounds of disability, within the meaning of section 6(2) of the Act and contrary to section 8 of that Act when in applied its disciplinary procedure to him in November, 2000. In reaching my decision I have taken into account all of the submissions, oral and written, made to me by the parties.
5.2 The respondent (Mr. C) stated at the hearing that as the complainant's Line Manager he had concerns about the complainant's performance from October, 1999, that he closely monitored the situation and regularly met with the complainant in this regard. Mr. C also shared his views with his immediate superiors, the Deputy Librarian and the Librarian. I note that the Deputy and Mr. C met with the respondent's HR Manager on 23 June, 2000 and that it was agreed the respondent's formal disciplinary process would be invoked against the complainant. At the hearing Mr. C accepted that the meeting he had with the complainant on 27 July, 2000 and his follow-up letter of 17 August, 2000 formed part of this process. The meeting of 22 November, 2000 involved a discussion around the complainant's performance and subsequent (around 4/5) meetings occurred to review the situation. I am of the view that these meetings formed part of the respondent's disciplinary process in respect of the complainant - the application of which the complainant argues constitutes discriminatory treatment of him. Whilst no specific dates of these meetings are available it is clear they took place some time after the 22 November, 2000. The complainant's referral form to the Tribunal was received on 22 May, 2001. Notwithstanding that the complainant did not complete the section of the referral form entitled "date of most recent occurrence of alleged discriminatory act" I am satisfied that the complaint was received by the Tribunal within six months of the most recent occurrence of the alleged discriminatory act - the application of the respondent's disciplinary process to the complainant - and I therefore have jurisdiction to investigate the complaint.
5.3 I shall now deal with the issue of reasonable accommodation. The Employment Equality Act, 1998 places an obligation on an employer to provide reasonable accommodation to an employee with a disability, unless the provision of same gives rise to a cost which is other than nominal in nature. I am satisfied that whilst the respondent may not have been aware of the finer details of the complainant's eye condition, it was aware through Mr. C and Ms. D that he had eye problems, at least from March, 2000. It is accepted by the respondent that the complainant regularly complained that his working environment was exacerbating his eye disorder, although I note the complainant did not furnish medical evidence to this effect. The respondent commissioned a study which recommended some modifications to the air units etc. in the Library generally and found that the air quality and found and temperature in the complainant's work area were within the norms - the report issued in March, 2000. I note the complainant, despite his assertion that the working environment was contributing to his eye condition, remained in that environment on several occasions until late at night to work on private matters. Whilst the respondent's actions on this point would not, in my view conform fully with the test set down by the Labour Court and Circuit Court as regards the provision of reasonable accommodation, I am satisfied that there was no alternative space available to relocate the complainant's work area and that any such move would have incurred a cost which was more than nominal in nature to the respondent. The complainant also states, and it is accepted by the respondent, that he complained of not having enough work to do and that this exacerbated his depression. The respondent contends that the complainant had ample work to keep him occupied and focussed his attention on tasks for a small number of students and I accept this was the case. In addition, I note the parties agree that for two separate six-month periods in 2000 and 2001 the respondent provided additional staff to the complainant during times when the workload peaked. Having assessed all the evidence presented on this issue I find, on balance, that the respondent did not fail to provide the complainant with reasonable accommodation contrary to the Act.
5.4 I note the respondent (Mr. C) accepts that his meetings and letters with the complainant from 23 June, 2000, after he had met with the Respondent's HR Manager, were part of the respondent's disciplinary procedure. I note that Mr. C wrote to the Librarian on 12 April, 2000 apprising her of the situation about the complainant's performance at that time. This note also contains the following statement - "in addition to his emotional/psychological problems he appears to have serious eye problems. The end result is that there have been and continue to be too many examples late arrival to, and absences from, work.". Minutes of the meeting of 22 November, 2000 confirm that the complainant's eye disorder and the possible impact of that disorder on his capacity to do his job were discussed, having been raised by Mr. C. I am satisfied that the respondent had legitimate concerns about the complainant's performance and punctuality and that it was appropriate for it to address these issues with him, ultimately through it disciplinary mechanism if necessary. That been said I am also satisfied that these were not the only factors which influenced the decision to apply the disciplinary code to him. The comments and opinions expressed by Mr. C on a number of occasions about the complainant's eye condition and emotional/psychological problems and their impact on his performance and attendance clearly coloured the approach adopted by the respondent as regards the application of its disciplinary code to the complainant. 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.". I am of the view that the respondent did not make adequate enquiries and was not in possession of all the material information at the time it made its decision and it therefore acted in an impetuous manner in applying the disciplinary mechanism to the complainant. It follows therefore that the complainant has established a prima facie case of discrimination which the respondent has failed to rebut.
6. DECISION OF THE EQUALITY OFFICER
6.1 I find, in the first instance, that the complaint was referred within the six month time limit prescribed by section 77(5) of the Employment Equality Act, 1998 and I therefore have jurisdiction to investigate the claim. I also find that the respondent did not fail to provide reasonable accommodation to the complainant contrary to section 16 of the Act. Finally, I find that the respondent discriminated against the complainant on grounds of disability, within the meaning of section 6(2) of the Employment Equality Act, 1998 and in contravention of section 8 of that Act when it applied its disciplinary procedure to him in November, 2000. In the circumstances I consider the appropriate redress to be an award of compensation and in accordance with section 82 of the Act I order the respondent to pay the complainant €5000 for the effects of the discrimination. The award does not contain any element in respect of loss of remuneration on the part of the complainant.
___________________________
Vivian Jackson
Equality Officer
20 March, 2006