EMPLOYMENT EQUALITY ACTS, 1998-2004
EQUALITY OFFICER'S DECISION NO: DEC-E2007-023
PARTIES
Ms. Karen Bradford
(Represented by Mr. Crehan B.L. instructed by McGarr Solicitors)
vs
Public Appointments Service
(Represented by Mr. Kerr B.L. instructed by the CSSO)
1. DISPUTE
1.1 The dispute concerns a claim by Ms. Bradford that she has been subjected to discriminatory treatment and harassment by the Public Appointment Service on the grounds of gender and disability within the meaning of Sections 6(1), 6(2) and 14 of the Employment Equality Acts, 1998-2004 and contrary to the provisions of Section 8 of those Acts. She further alleges that the Public Appointment Service failed to provide her with reasonable accommodation in terms of Section 16 of the Acts.
2. BACKGROUND
2.1 The complainant is registered as having a disability with the National Rehabilitation Board. She was involved in two traffic accidents and as a result suffered serious neck, back and hand pain. The complainant, therefore, found it difficult to undertake a lot of typing or to use a mouse for lengthy periods of time. She applied for a position of Clerical Officer in the Civil Service under a disability competition and was successful in her application. It is the complainant's contention that she was subjected to discriminatory treatment and harassment on grounds of disability and that the respondent failed to provide her with reasonable accommodation. The respondent has denied the allegations.
2.2 Consequently the complainant referred her complaint of discriminatory treatment and harassment and her claim that the respondent failed to provide her with reasonable accommodation to the Director of Equality Investigations on 21st April, 2005 under the provisions of the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 17th November, 2006 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a joint hearing took place on 18th April, 2007. Subsequent to the hearing the complainant submitted one further document in the case and this was received on 26th April, 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant states that on or about the Summer of 1999 she sat an examination for the position of Clerical Officer in the Civil Service. The competition under which she sat the examination was a recruitment competition for persons with a disability. As a consequence of two road traffic accidents the complainant says that she suffers from severe recurring back pain and as a result cannot write or type for prolonged periods of time. According to the complainant she is registered as a disabled person with the National Rehabilitation Board. It is the complainant's submission that, at all times from her application to sit the Clerical Officer (Disabled) recruitment competition, the respondent was aware or ought to have been aware of her disability.
3.2 The complainant was successful in the competition and commenced employment on 9th April, 2001 assigned to the Office of the Civil Service & Local Appointment Commissioners (now known as the Public Appointments Service). She was assigned to duties in the reception area of the respondent organisation in their building at Abbey Street Upper, Dublin 1 where the complainant says that she worked for approximately nine months. After this she was assigned to duties in the Business Support Unit where she worked for approximately six months. Upon completion of her first year of service (April, 2002) the complainant says that she received her first increment. Shortly thereafter (in July, 2002) she underwent her first annual appraisal which was positive with five 'satisfactory' ratings and two 'satisfactory plus' ratings.
3.3 The complainant states that in July, 2002 she was transferred to duties in the Paramedic Recruitment Section. Here she says that she was required to do large amounts of typing and this tended to aggravate her back and neck condition and to which, because of her disability, she was unsuited. As a consequence of this assignment the complainant says that she was caused severe physical pain and injury and her level of sick leave escalated. It is her contention that the assignment by the respondent of unsuitable duties, with full knowledge of her disability constitutes discrimination under the legislation. According to the complainant she repeatedly requested a transfer to more suitable duties but all her requests were ignored and she contends that such failure to respond also constitutes discrimination by the respondent. The complainant states that she did not receive an increment in April, 2003 or again in April, 2004. It is the complainant's submission that these assessments were discriminatory insofar as they were based on the same criteria as would have been used in assessing an able-bodied person. The complainant submits that the application of the same criteria to two classes of persons who are qualitatively different constitutes discrimination.
3.4 From her time in the Business Support Unit the complainant states that she was subject to discriminatory treatment and bullying which took the following forms:
§ She was isolated from the rest of the organisation and the rest of her Section. She was moved to an office in Grand Canal Street for approximately five weeks from January, 2002. At this point the Section was moved to new offices in Abbey Street and the complainant was the only member of staff left on the 5th floor of the Grand Canal Street building.
§ The complainant states that she was not given any meaningful work during her time on the 5th floor of the Grand Canal Street building. This, the complainant alleges, constitutes discriminatory treatment in itself and was also an inappropriate response to her earlier complaints regarding her inability to carry out certain duties.
§ According to the complainant a meeting was held by other Clerical Officers in her Section on 7th February, 2003 from which she was excluded. The stated purpose of the meeting was to discuss 'issues about your (the complainant's) work'. The complainant contends that by dealing with concerns about her work in such a public manner the respondent engaged in discriminatory behaviour and aggravated this discrimination by excluding her from the meeting. It is the complainant's submission that this behaviour results from a deliberate and conscious policy of ignoring her disability status.
§ The complainant states that she requested special equipment which she required to enable her do her work given her disability. This included an orthopaedic chair and speech recognition typing software. The complainant had to make several requests for this equipment and when her orthopaedic chair arrived it became a butt of jokes in the office and its height was regularly adjusted as a practical joke. According to the complainant her repeated complaints were not acted upon or taken seriously.
3.5 The complainant says that in February, 2004 after several requests she was transferred to duties in the Switch and Reception. While working in this area she says that she was subjected to discriminatory bullying by both her immediate supervisors which took the form of constant complaints regarding the performance of her duties which she says were not suitable to a person with her disability. The complainant notes that her appraisals continued to be undertaken by the supervisors against whom she had complaints of discriminatory bullying and she contends that this aggravated the discriminatory bullying. The complainant submits that she was singled out for different treatment by management because of a belief that her perfectly legitimate efforts to highlight genuine discrimination against her were resented or belittled. Such behaviour, she says, is in itself discriminatory.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent states that the complainant commenced employment as a Clerical Officer on 9th April, 2001. She was appointed from a competition confined to persons registered with the National Rehabilitation Board (NRB). The respondent says that prior to her appointment it received advice from the Chief Medical Officer (CMO) about the type of work which might suit her. The CMO stated that the complainant had a medical condition which meant that she could not use a keyboard/mouse for long periods and that she had difficulty using the telephone. As a result of this advice the respondent says that the complainant was originally assigned to the Business Support Unit which also involved reception duties and this was the Unit where Clerical Officers had the least typing duties. According to the respondent the complainant requested a transfer from these duties on 30th July, 2001 and this request was facilitated even though it is not general practice to grant staff transfers after having worked there for a short period of time. The respondent says that the complainant then worked in the Interview Support Unit which oversaw the move to the respondent organisation's new corporate headquarters in 2002, following which it was disbanded. The complainant then transferred to a recruitment unit (the main body of work of the respondent organisation).
4.2 The respondent states that while in this unit (i.e. recruitment unit) her manager says that the complainant was never pressurised into taking on typing duties. The manager acknowledges that he was aware that the complainant had difficulties with typing and she had informed him that she needed to take regular breaks as she could not stay sitting at her desk for prolonged periods. It is her manager's recollection that he told her on a number of occasions that she should not do anything that would cause her physical discomfort and that she should take breaks away from her desk as and when required. The complainant's manager states that on occasion when he did see her typing he asked her if she was in a position to do this work and she replied in the affirmative.
4.3 The respondent says that on 28th October, 2002 the complainant requested a transfer from the recruitment and selection unit as she alleged that she had to type and use a mouse constantly. According to the respondent she also stated that Reception and Business Support Section had suited her (even though she had requested a transfer from this area). The respondent says that she sought a transfer to Freedom of Information (FOI) Unit, Records Management Unit (RMU) or the Business Support Unit (BSU). It is the respondent's submission that these Units only contain one or two Clerical Officers at any time and there were no vacancies in these areas at this time. The respondent denies that her requests for a transfer were ignored and says that a great deal of effort was made to facilitate her request. According to the respondent the CMO was asked for his opinion on suitable duties for the complainant and while he considered this the respondent says that it endeavoured to arrange a suitable transfer for the complainant. While this was ongoing the respondent says that the complainant was informed that she did not have to carry out any duties that she was uncomfortable with and suitable accommodations were sourced for her namely an orthopaedic chair and appropriate activated computer software and headset. The respondent says that the response from the CMO advised the respondent to explore suitable accommodations and informed it that only one of the complainant's sick absences could be discounted because of her disability.
4.4 The respondent states that the work of the Clerical Officer in both BSU and RMU required the lifting and moving of boxes and files and a large amount of manual handling and was, therefore, not deemed suitable for someone with an existing medical condition. In January, 2003 the respondent succeeded in arranging a transfer for the Clerical Officer in the FOI Unit in order to facilitate the complainant's request for a transfer to that area but she then withdrew her transfer request to that area. The respondent says that in February, 2003 the HR Manager met with the complainant and set out the duties of Clerical Officers in all Units in the organisation in order that she could identify tasks which she would be able to undertake. Following extensive consultation with the complainant the respondent says that she was transferred to a position on the Helpdesk as it was felt that this position required less typing and the complainant would be able to carry out the duties of the position required of her. The respondent says that in December, 2003 the complainant rang the Disability Liaison Officer (DLO) while on sick leave to state that her sick leave was stress related due to the change of Section (to the Helpdesk) as the work did not suit her. She requested Reception duties and the DLO advised her to consult her manager or the HR Manager. The respondent says that in February, 2004 a position was created for the complainant which included Switch duties and relief Reception duties. On her return to work from sick leave the respondent allowed the complainant to commence work on the basis of half days (while still on full pay) in order to ease herself back into the organisation gradually. According to the respondent the complainant was allowed to pick the hours that suited her.
4.5 The respondent states that the complainant's managers completed an incremental/probation assessment form for her in April, 2003 and she received four unsatisfactory ratings. In assessing the complainant's performance the respondent says that her managers took into account her disability and the minimum standards acceptable for performance in her grade. The assessment was based on her supervisors' experience of her work. They felt that she was unable to reach the level of competence in handling many of the tasks to such a level that one could rely on her completing the work satisfactorily on her own and, therefore, felt that her work needed constant checking. As a result of these ratings the complainant's increment and probation were deferred and she was informed of this by Human Resources. The respondent says that following a further unsatisfactory assessment (from a separate set of managers) in September, 2003 the complainant notified Human Resources that she wished to appeal her new managers' incremental assessment of her (from April to September, 2003). In this regard and in accordance with procedure the complainant spoke with the Senior Manager about the assessment who undertook to speak with both managers about it. Both managers were adamant that the assessment was honest and accurate and they were not prepared to change it. The respondent says that the Senior Manager found that the appeal was unsuccessful and that this assessment would stand.
4.6 The respondent says that in April, 2004 her increment and probation was again deferred due to an unsatisfactory assessment on her work performance from a third set of managers. According to the respondent the complainant had her probation extended rather than terminated due to the fact that she had a disability. It is the respondent's submission that another member of staff with the same level of sick leave and number of unsatisfactory assessments would be likely to have their probation terminated and they would be informed that they could not be recommended for establishment. The respondent says that the complainant was offered extra time to prove her suitability for establishment as it was recognised that she had a disability and that accommodation for this should be made. The respondent notes that due to later satisfactory assessments and an absence of sick leave the complainant was made established and granted her increments. According to the respondent this was completed in time to allow her to apply for an internal promotional competition which was being run. The respondent says that the increments previously deferred were backdated hence the complainant suffered no loss because of the deferrals. This is not general practice but the exception was made because of the complainant's disability.
4.7 In response to the complainant's allegation of discriminatory treatment and bullying from her time of assignment to the BSU the respondent states as follows:
(a) The respondent denies that the complainant was isolated when assigned to the work on the 5th floor of the office in Grand Canal Street. It is accepted by the respondent that the offices in Grand Canal Street would have been quiet with most of the staff having moved to the new corporate headquarters in Chapter House but this does not mean that the complainant was isolated. According to the respondent there was a business decision to assign a manger to perform a particular role while the office was vacating the premises in Grand Canal Street and moving to Chapter House. The complainant was assigned to this manager to perform duties in support of his role. It is the respondent's submission that it is understood from comments she has made previously that she was content during this time and worked well with this manager.
(b) In relation to the Clerical Officers' meeting the respondent says that the complainant's manager had a responsibility to ensure the smooth running of his section and to ensure that all staff operated to their full potential. On this occasion certain members of his staff approached him expressing concerns about certain issues. He acceded to their request to meet and facilitated a meeting with them at short notice to discuss issues that were of concern to them having no prior knowledge of their agenda. He granted this request and subsequently discovered after commencing the meeting that the issues related to the complainant's performance in the Section and the impact of this on the rest of the staff. The core of their complaint was in relation to elements of their work which the complainant had been asked to assist with and which had to be redone when it was returned. It was the view of the group that if work had to be redone it would be easier to do it themselves. The respondent says that the manager spoke with the complainant to point out the issues raised by the other Clerical Officers. According to the respondent he (the manager) found the complainant extremely agitated and stated that she would be consulting a solicitor and walked off. The respondent says that the manager did try to engage with the complainant again in this matter but she refused to meet him.
(c) In relation to the requests for specialised equipment the respondent says that the complainant requested an orthopaedic chair in October, 2002 and this request was sent to the CMO who requested additional information on the type of chair required. This information was then sought from the complainant and passed to the CMO. The chair was then ordered and delivered on 12th February, 2003. The respondent says that in November, 2002 the complainant sought Via Voice Release 10, a headset and training in this computer software package. The software and headset were provided but there was no training available initially so the complainant was provided with time at work to learn the package. The respondent says a further computer software package was obtained for the complainant at a later stage due to difficulties she had with the initial package and training was provided on the latter package. According to the respondent the HR Manager previously investigated the complaints by the complainant in relation to alleged jokes about her chair and found no evidence to support the allegations. He also found no evidence that any person in the office tampered with the chair or evidence of any complaints from the complainant in this regard at the time it was alleged that these incidents occurred.
(d) In relation to complaints of bullying and harassment the respondent says that the complainant first made complaints of this nature in September, 2004. These complaints were investigated by one of the respondent's Bullying Investigators in conjunction with an external investigator to ensure impartiality as complaints were made against a large number of staff. The respondent says that the investigators held an initial meeting with the complainant in December, 2004 to discuss the procedures to be followed in the investigation and to ascertain the facts behind her complaints. At this meeting the investigators felt that it would not be appropriate to proceed with the investigation on the basis of the facts presented and the respondent says that the complainant felt that there was a lot of queries to which Human Resources may be able to respond. It was suggested to her that she approach HR with her queries and the respondent says that the investigators understood that she agreed to this proposal. According to the respondent the complainant subsequently disagreed with the minutes of the meeting and asked that the external investigator be replaced as she had stated that she had found no evidence of bullying in the complainant's letter of complaint. Following on from this meeting the respondent says that the HR Manager conducted a comprehensive investigation in order to respond to questions posed by the complainant. He investigated all of the issues raised by the complainant and this involved meetings with a range of people across the organisation in the areas she referred to and he re-examined the assessments conducted by her supervisors. The HR Manager issued a response to the complainant in July, 2005 indicating that he had found no substance to her complaints, but one set of managers had agreed to amend part of her assessment on review. Following the response from HR the respondent says that the investigators attempted to organise a further meeting with the complainant to examine whether her questions had been answered satisfactorily and if she still wanted to progress her complaints. The respondent says that a meeting could not be arranged as the complainant commenced sick leave and while on sick leave her solicitor instructed that this investigation be put on hold.
4.8 The respondent says that in relation to bullying while working on Switch/ Reception the complainant's managers discussed issues relating to her work on a number of occasions, as is standard practice. Following her complaint of these managers, the complainant was transferred to another manager, as she was not comfortable continuing to report to them for assessment purposes. The respondent says that her duties generally remained the same but have been adapted on a number of occasions since, when she has felt that there were aspects she has been unable to perform.
4.9 The respondent states that at no time has the complainant been singled out for different treatment due to her allegations. All accommodations requested were granted. The respondent notes that even though this is a small organisation transfers were requested for the complainant when she sought them and posts were created in an attempt to find some duties that would not aggravate her disability. At all stages the respondent says that management were aware of the complainant's disability and every attempt was made to accommodate her requirements. According to the respondent managers and staff are aware of their responsibilities in relation to the accommodation of staff and clients with disabilities and have been provided with training on these issues. It is the respondent's submission that it has a very good record in this area. The respondent contends that the complainant has not been discriminated against and that every effort has been made to accommodate her and not aggravate her disability. According to the respondent consideration had been given during all appraisals to her special needs and great flexibility has been shown in both the allocation of duties and in the assessment of her performance.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was subjected to discriminatory treatment and harassment by the respondent within the meaning of Section 6 of the Employment Equality Acts, 1998-2004 on the grounds of her disability. I must also decide if the respondent provided reasonable accommodation or took appropriate measures to enable the complainant to fully undertake the duties of the post. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
5.2 In lodging her complaint on 21st April, 2005 the complainant held that the final act of alleged discrimination took place in March, 2005. At the hearing of this claim the respondent noted that, to its knowledge, no act of alleged discrimination occurred in March, 2005. The respondent held that in March, 2005 the complainant became established (i.e. her probationary period ended) and she was paid her increments for 2003 and 2004 which had been deferred due to negative appraisals. The complainant noted that she received her third negative appraisal in April, 2004 and it is her contention that the discrimination was on-going. I note from the documentation provided to me in this claim that the complainant wrote a long letter of complaint to the respondent on 13th September, 2004 on foot of which investigators were appointed. A meeting took place between the complainant and the investigators at which it was decided that a number of issues could best be responded to by the Human Resources (HR) Department. As a result the HR Department was asked to examine and respond to a number of issues raised by the complainant. The response was furnished to the complainant in July, 2005 (some months after the complainant lodged her complaint to the Equality Tribunal). I am satisfied that the alleged discrimination was, therefore, ongoing at the time of the referral of her complaint to the Equality Tribunal and within the time limits as set out in the legislation.
5.3 It is the complainant's contention that she was treated less favourably by the respondent on the grounds of her disability under the provisions of the Employment Equality Acts, 1998-2004. In this regard the complainant points to the lack of meaningful work being assigned to her, the negative appraisals she received and a refusal to grant transfer requests. She further alleges that she was subjected to harassment because of her disability. It is also her contention that the respondent failed to provide reasonable accommodation or take appropriate measures to enable her to fully undertake the duties of the post. The respondent denies the allegations.
5.4 The complainant applied for a Clerical Officer position in the Civil Service under a disability competition and she was successful in her application. The complainant was involved in two car crashes and as a result suffers from severe back, neck and hand pain. She is registered as a disabled person with the National Rehabilitation Board. The complainant commenced employment with the respondent organisation on 9th April, 2001. She was assigned to Reception duties and after a period of nine months she sought a transfer for personal reasons. This transfer request was granted and the complainant was assigned to the unit which was charged with overseeing the move of the organisation to the new corporate Headquarters. The complainant was with this Unit for a period of six months at which point the life of the Unit came to a natural end. It is during this six months period that the complainant alleges that she was socially excluded and given no meaningful work for approximately five weeks. In April, 2002 the complainant received her first increment and subsequently in July, 2002 received a positive appraisal.
5.5 In July, 2002 the complainant was transferred to the Paramedic Recruitment Section. It is her contention that she was required to do large amounts of typing which aggravated her condition. The complainant says that she repeatedly requested a transfer out of this Section but her transfer request was not granted. On 7th February, 2003 the Clerical Staff in the Section sought a meeting with the manager to discuss issues about the complainant but she (the complainant) was excluded from this meeting. In September/October, 2002 the complainant requested an orthopaedic chair and then in November, 2002 she requested voice activated software to enable her to avoid the need to type. The chair and the software were provided. In April, 2003 the complainant received a negative appraisal and did not receive her increment. In September, 2003 the complainant was transferred to helpdesk duties. Between September and December, 2003 the complainant had significant sick leave due to stress and in December, 2003 she contacted the Disability Liaison Officer in the respondent organisation stating that her stress related sick leave was due to work on the helpdesk which did not suit her. In February, 2004 the complainant was assigned to Switch duties and Relief Reception duties. For the period of about one month the complainant returned to work from sick leave on the basis of half days while still on full pay to enable her to ease herself back into work gradually. The complainant received a further negative assessment in April, 2004 and did not receive her increment. Then in January, 2005 an appraisal was undertaken of the complainant's work and she was given a favourable report resulting in her receiving all her previous increments which had been deferred. From June, 2005 the complainant has been absent from work on sick leave.
5.6 Section 16 of the Employment Equality Acts, 1998-2004 sets out the nature and extent of the employer's obligations in certain cases. It provides as follows:
"(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual -
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person's employer.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of -
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer's business, and
(iii) the possibility of obtaining public funding or other assistance.
(4) In subsection (3) -
"appropriate measures" in relation to a person with a disability -
(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself."
5.7 The provisions of the legislation as to the duties on an employer where an employee has a disability are very clear. In this case it could be said that the respondent afforded the complainant significant latitude because of her disability. For instance the respondent granted a transfer request to the complainant after nine months in the employment where the request for a transfer was for personal reasons. The respondent, in its submission, stated that it is not general practice to grant staff transfers where the staff member has only worked in the area for a short period of time. According to the respondent similar requests for a transfer would not have been granted. Because of her disability the respondent says that the complainant had her probation extended and her increments deferred and subsequently backdated whereas other staff members with similar sick leave and unsatisfactory assessments would have had their probation terminated and their increments would not have been backdated.
5.8 Having said that I am satisfied that the respondent was aware that the complainant had a disability prior to the commencement of her employment. In this regard the respondent consulted the Chief Medical Officer on how best to accommodate the complainant. I note however that the respondent failed to consult the complainant herself on how best to accommodate her given her disability(2). In circumstances where the complainant was seeking a transfer out of the Paramedic Recruitment Section the respondent in March, 2003 provided the complainant with a brief outline of the functions of a number of Units in the organisation. This should have been provided to the complainant on the commencement of her employment and should have covered all areas in the organisation. There was an onus on the respondent to consult the complainant about her requirements and bearing in mind that typing and computer work are a big function throughout the organisation the respondent should have outlined the constraints within which it would be operating. Had this exercise taken place it may have circumvented all of the transfer requests. Furthermore in moving the complainant to a Recruitment Section where typing and computer work forms a significant part of the workload the respondent could have ensured that voice activated software worked and worked properly. I note that the complainant was provided with voice activated software and headset but there were ongoing difficulties with the package. Had the respondent invested in this software when the complainant commenced employment, any difficulties she had with it could have been resolved before she was assigned to a Recruitment Section.
5.9 The complainant received negative appraisals and as a result did not receive increments for two years. She also had her probation extended. Two aspects contributed to this namely her negative appraisals and her level of sick leave. The complainant received three negative appraisals from three different sets of managers. The first negative appraisal related to the time the complainant worked in the Recruitment Section. According to the respondent the complainant was assessed on the work she performed. On this appraisal form the following comments are made:
"While Karen continues to be most obliging, she is not involved in the full range of duties of other Clerical Officers in the Unit and is therefore somewhat underemployed and has not developed the full range of knowledge/skills required ... Karen has identified a computer package that may assist her in this regard.
In the limited time Karen was involved in the full range of duties of other COs in the Section she was not able to build up the experience base to perform the standard expected of other COs in the Section".
The complainant has argued that she should not have been compared to other Clerical Officers when she was been assessed on her work because of her disability. I cannot accept this. Under the legislation the complainant, even though she has a disability, must be able to undertake all the duties of the position once she has been provided with reasonable accommodation or that the respondent has undertaken the appropriate measures to enable her undertake all the duties of the position. I am satisfied that, at the time, of this appraisal the respondent had failed to put appropriate measures in place to enable the complainant undertake all the duties of the position. It is clear from the specific comments on this appraisal (as set out above) that the complainant's limitations in carrying out the full range of duties of the position had been foremost in the minds of the assessors. It is also clear that the complainant had not been provided with a voice activated computer package which worked to assist her in undertaking the full range of duties of the post. In the circumstances, therefore, I am satisfied that this appraisal was unfair. A second appraisal was carried out on the complainant in September, 2003 while she was still in the Recruitment Section but by a different set of managers. This appraisal cannot be located by the respondent and the complainant was not provided with a copy of it. In the circumstances it is not possible for me to comment on that appraisal. The third appraisal was completed in April, 2004 while the complainant was assigned to Switch and Reception duties. The respondent was unable to provide a copy of this appraisal but the complainant did have a copy of it and made it available to me after the hearing of this claim. I have examined this appraisal and I am satisfied that her disability has not impacted on the assessment therein.
5.10 The complainant has made the following additional allegations:
- She was isolated from the rest of the staff for a five week period in January, 2002 when she had to remain in the Grand Canal Street building while all other staff had moved to the new Corporate Headquarters in Abbey Street;
- She submits that during this time she was not given any meaningful work;
- A staff meeting was held on 7th February, 2003 from which she was excluded even though she was the only topic for discussion at that meeting;
- While she was provided with an orthopaedic chair it is the complainant's contention that it became the butt of jokes in the Office and its height was often adjusted as a practical joke. According to the complainant her repeated complaints about this behaviour were not acted upon.
5.11 I note that it is accepted that the complainant remained in the Grand Canal Street building after staff moved to the new offices in Abbey Street. The respondent denies that the complainant was the only staff member left behind. According to the respondent the complainant was working at the time with the person who was overseeing the move. The assignment to this role was because it did not require typing and it was felt would suit the complainant, given her disability. At the hearing of this claim the complainant stated that there were times that she had no access to a telephone. I have considered this allegation and I am not satisfied that the complainant was treated less favourably because of her disability when she had to remain in the Grand Canal Street building. While the complainant submits that she was assigned no meaningful work I have no reason to believe that meaningful work would have been provided to a person without a disability in the same position as the complainant. In a situation where an organisation is moving (including communications) it is reasonable to expect a disruption to the telephone network. I am satisfied that this would impact on anyone irrespective of disability.
5.12 I note that a staff meeting took place on 7th February, 2003 at which other Clerical Officers complained to the manager of the Recruitment Section about the standard of the complainant's work. According to the complainant she was excluded from this meeting. It is the respondent's submission that the other clerical staff approached the manager requesting the meeting and he granted the request but was not aware what the meeting was about until the complainant's work was raised during the course of the meeting. I cannot accept that the complainant was treated unfavourably in relation to her disability as a result of this meeting. I am satisfied that in February, 2003 the respondent had not provided appropriate measures to enable the complainant to undertake the duties of the post (the respondent had provided a voice activated software package but the complainant experienced problems with the package. It was the complainant herself who had sourced a different package and the respondent agreed to purchase it in April, 2003). If other staff were having difficulties they had a right to raise them with management. However if the respondent had put in place appropriate measures for the complainant to enable her to carry out all the duties of the post then other staff may not have had a problem with the complainant's work and this meeting may never have taken place.
5.13 The complainant has alleged that her orthopaedic chair was the butt of jokes and its height was adjusted on a number of occasions as a practical joke. She alleges that no action was taken despite her numerous complaints. I note that the complainant has provided no evidence to support this contention. Furthermore I have been provided with no evidence of the numerous complaints she is alleged to have made. It is worthwhile noting that the complainant alleged that she had made repeated requests for a transfer out of the Recruitment Section but the evidence was that she had only made two transfer requests (one oral and one written). Given that there is no evidence of complaints in relation to practical jokes I have to question the credibility of the complainant in circumstances where she uses words such as repeated and numerous and in the case of repeated there were two instances and in the case of numerous there is no evidence of any instances.
5.14 In conclusion, therefore, I am satisfied that there was a failure on the part of the respondent to provide the complainant with reasonable accommodation by way of undertaking appropriate measures to enable her to undertake all the duties of the position. While the respondent did facilitate the complainant in various ways (e.g. extending her probationary period, deferring increments, facilitating a return to work on a part-time basis while on full pay) these accommodations were not such as to enable the complainant to fully undertake the duties attached to the post. I am, further, satisfied that there is no evidence to support the complainant's contention of harassment. In her original referral the complainant alleged that she had been discriminated against on the grounds of gender. I find that there was no evidence to support this allegation. In terms of redress I note that the complainant has sought monetary compensation in the low thousands for the stress suffered as a result of the discrimination.
6. DECISION
6.1 In view of the foregoing I find that the Public Appointments Service discriminated against Ms. Bradford in terms of Section 6(1) and 6(2)(g) of the Employment Equality Acts, 1998-2004 and contrary to the provisions of Section 8 of that Act.
6.2 I also find that the Public Appointments Service failed to provide Ms. Bradford with reasonable accommodation in the context of Section 16 of the Employment Equality Acts, 1998-2004.
6.3 I note that the Public Appointments Service did endeavour to provide the complainant with reasonable accommodation given her disability, however misguided in its approach.
6.4 In the circumstances of the above and in accordance with Section 82 of the Employment Equality Acts, 1998-2004 I hereby order that
- the Public Appointments Service pay Ms. Bradford the sum of €6,000 by way of compensation for stress suffered as a result of the discrimination;
- that all staff receive training in disability issues with the emphasis on the requirements of the Employment Equality Acts, 1998-2004.
______________________
Gerardine Coyle
Equality Officer
8th May, 2007
notes
(2) See Labour Court Determinations in this regard namely McCrory Scaffolding (N.I.) Limited and A Worker - EED055; A Health Fitness Club and A Worker - EED037 and A Computer Component Company v A Worker - EED013