The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2008-031
PARTIES
Ms Marian Nolan
(Represented by SIPTU)
AND
Forum for People with Disabilities
(Represented by Hayes Solicitors)
File reference: EE/2005/212
Date of issue: 13 August 2008
1. DISPUTE
1.1 This dispute concerns a claim by Ms Marian Nolan that she was discriminated against in relation to access to employment and conditions of employment, and that she suffered harassment and was not provided with appropriate measures by the Forum of People with Disabilities on the ground of disability in terms of section 6(2) of the Employment Equality Acts, 1998 – 2007 and contrary to section 8 of those Acts and suffered victimisation in accordance with section 74 (2).
1.2 The complainant referred her claim of discriminatory treatment to the Director of the Equality Tribunal on 15 June 2005 under the Employment Equality Acts 1998 and 2004. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were sought and received from the parties, and a hearing was held on 11 March 2008.
1.3 The Forum of People with Disabilities officially closed operations on 12 November 2007 but has delayed the official winding up pending the outcome of this complaint.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The Complaint submits that she is blind and that the respondent failed to provide agreed supports and accommodation that were necessary for the complainant to do her job. She started work with the respondent on 4 October 2004 as Project Officer on the Claiming Our Rights project and was the only person working out of Galway City.
2.2 The complainant submits that at her interview she made the respondent aware of her inadequacies in relation to computer skills and report writing. These were raised again in her appraisal in May 2005 and whilst the complainant acknowledged them as her weak points the respondent used them to demean and demoralise her by failing to provide training. Also transmissions from head office were not compatible with her software, Jaws 5. The complainant became reliant on family members to assist her.
2.3 The complainant further submits that at her interview she was advised that she would be provided with a corporate personal assistant/administrator to assist her. This was raised by the complainant at her appraisal but the post was never filled.
2.4 Following a fire at their office in December 2004 the complainant submits that she was re-located to the Galway City Partnership office. She was told this would be temporary and was prepared to contend with its inadequacies on a short-term basis but she was there until she was dismissed in September 2005. The main problems were:
· The accommodation was on the 3rd floor
· The lift was continually giving trouble
· The stairs were poorly lit
· Private conversations with clients could be overheard by other people and the complainant would not be aware of this because of her disability.
2.5 The complainant submits that the mobile phone supplied to her was inaccessible to her, yet the four members of the forum’s committee with a visual impairment received accessible phones.
2.6 Press releases and letters prepared by the complainant were often modified, changed and criticised. The complainant submits that reporting arrangements were changed without consultation or agreement and consequently she reported to both the Director and Project Manager. She was targeted by the Project Manager for constant criticism. She also submits that impossible deadlines were set for the submission of reports. Furthermore, all her telephone conversations were logged and this put further pressure on her.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent rejects the allegations of discrimination on the grounds of disability and submits that they made all reasonable efforts to accommodate and facilitate the complainant in carrying out her job.
3.2 The respondent submits that the office relocation was done in consultation with the complainant.The new premises housed a number of groupings of disabled people at a community level and were an open-plan office. It was not envisaged that there would be a need to engage with project participants in the office but there was access to meeting rooms for confidential discussions. The complainant made no complaint about the premises during her employment.
3.3 The respondent submits that the advertisement and job description stated that “good IT skills” were required for the position and this was made clear at the interview. Interview notes state that the complainant “possesses an adequate level of IT skills and an obvious determination to develop in this area”. Following advice from the National Council for the Blind (NCB) the respondent purchased an adapted PC, scanner and printer. They also obtained JAWS software under FAS’s Employment Support Scheme, which they understood to be compatible with their software. At the time of installation no problems were found. The complainant was encouraged to seek help from the NCB if she had any problems but it is not clear to the respondent what support was sought.
3.4 The respondent submits that on recruitment the complainant was made aware that support could be obtained by the Forum from FAS to enable her to employ a Personal Assistant. The Forum agreed to obtain the resources for this support but the responsibility for recruitment lay with the complainant. The chairperson was reluctant for the complainant to take on a full time assistant when the project was getting off the ground. The complainant chose to use family members to provide this support which was paid for by the respondent.
3.5 The respondent submits that they were not made aware of problems with the mobile phone and does not understand that the complainant encountered problems as it was used extensively, as shown in a bill submitted for the period 8 April to 7 May 2005.
3.6 The respondent submits that they began to have concerns about the complainant’s performance following a team meeting in December 2004 when she made no contribution. The move to new premises seemed to upset the complainant, to the extent that in January 2005 she contacted the Director and expressed concerns about her capacity to do her job. Subsequently, the respondent submits that the Director expressed concerns about the complainant’s capacity to the Forum’s Executive. In March 2005 the Director acknowledged the good work undertaken by the complainant in respect of regional meetings but also pointed out her concerns about the areas in which the complainant was having difficulties. The respondent submits that at a team meeting on 5 April 2005 the Director advised the team of revised support structures and the complainant did not raise any issues at this time. The respondent submits that on 23 April 2005 the complainant did not attend for work as scheduled in Dublin and the Director was informed that she had gone shopping with the Forum’s vice chairperson. At the complainant’s six-month appraisal in May 2005 it was agreed that she could communicate with the Project Manager through the Director, but this proved very difficult to work. At a project meeting on 11 May 2005 the Director was concerned that a full list of the access needs of participants, which was the complainant’s responsibility, was not available 10 days before the first training session of the COR project. Around this time it also became clear that the complainant could not produce reports required by the funding organisation.
3.7 The complainant went on extended sick leave on 12 May 2005 and around this time the complainant received a copy of a letter from the Director to the Chairperson of the Forum outlining her concerns about the complainant’s ability to do her job. At a project review in August 2005 the complainant indicated that she saw no role for herself as a Project Officer within the COR project.
3.8 The respondent submits that the funding organisation withheld funding from the Forum for COR project until wider issues within the organisation were addressed. This left the respondent with no option but to terminate the services of all employed or providing services to the COR project and the complainant was given one month’s notice on 12 September 2005.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The respondent submitted that I had no jurisdiction to investigate this claim as the complainant made a claim to the Employment Appeals Tribunal under the Unfair Dismissal Acts, 1977 to 2001. However, this claim does not refer to her dismissal but only relates to whether the complainantwas discriminated against during the period of her employment.
4.2 The issue for decision is whether the complainant was discriminated against in relation to conditions of employment, whether she suffered harassment and that she was not provided with reasonable accommodation by the Forum of People with Disabilities on the ground of disability in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to section 8 of those Acts and suffered victimisation in accordance with section 74 (2).In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.3 I am satisfied that during the period of her appointment the complainant was suffering from a disability in accordance with Section 2 of the Employment Equality Acts 1998 – 2008. The respondent was aware of her disability and I have to decide if they fulfilled their obligations under section 16 (3) of these Acts which states:
“(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 necessary 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 imposed would impose a disproportionate burden on the employer.”
4.4 When she started work the complainant was provided with an adapted PC and software (JAWS), and a mobile phone that the respondent considered would make her fully competent to carry out her duties as Project Officer. The complainant had some difficulties with the JAWS software and the mobile phone but there is no evidence that she brought these difficulties to management’s attention and the respondent’s case is that they were unaware of the problems. Also, the respondent was willing for the complainant to employ a personal assistant on a part time basis yet the complainant chose not to do so, even though she contends that the lack of clerical support made it difficult for her to be fully competent. When the complainant raised the issue as part of her appraisal in May 2005 it was agreed that the complainant and Director would draw up a job description and begin the recruitment process but this was not progressed as the complainant went on sick leave. Most of the issues raised by the complainant about the re-located office accommodation do not relate to her disability and I accept that the respondent considered the accommodation to be suitable and appropriate for the complainant.
4.4 Appropriate measures as defined in section 16 (4) of the Acts:
“(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.”
I therefore conclude that the respondent took appropriate measures to allow the complainant to be fully competent when she was appointed and any difficulties which arose for the complainant were not resolved because she did not bring them to the attention of the respondent. I conclude, particularly in accepting the evidence of discussions that took place at the complainant’s appraisal, that any issues raised in relation to measures necessary to allow the complainant to be fully competent would have been addressed by the respondent.
4.5 Clearly there were difficulties with the project and this involved criticism of the complainant’s work. The situation for the complainant worsened when she was told to report to the Project Manager from 4 April 2005. This led to her grievance of 3 May 2005 and discussions during her appraisal. Attempts were made to ease relations by changing the reporting relationship but this did not work. By September funding for the project was withdrawn and this supports my conclusion that criticisms of the complainant’s work were based on concerns about the project and the complainant’s performance and were not related to her disability. I therefore find that the complainant suffered no discriminatory treatment in relation to her conditions of service. Despite the difficulties with the project and the grievance raised by the complainant I find no evidence of harassment or victimisation within the meanings of the Employment Equality Acts, 1998 – 2008.
5. DECISION
I have investigated the above complainant and make the decision in accordance with section 79 of the Acts that the respondent did not discriminate against the complainant on the grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and that she did not suffer victimization in accordance with section 74.2 of the these Acts.
_________________
Hugh Lonsdale
Equality Officer
13 August 2008