The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER'S DECISION DEC-E2009-089
PARTIES
Martina Howe
(Represented by Ms Claire Bruton instructed by P.J. Byrne & Co)
AND
HSE
File reference: EE/2007/324
Date of issue: 9 October 2009
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6, 8 & 74 - Disability - Conditions of Employment & Victimisation.
1. DISPUTE
1.1. This dispute concerns a claim by Ms Martina Howe that she was discriminated against by the HSE on the grounds of disability contrary to section 6(2)(g) of the Employment Equality Acts 1998-2008 in relation to conditions of employment in terms of sections 8(1)(b) and that she was victimised in accordance with section 74 (2) of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 28 June 2007 under the Employment Equality Acts 1998 and 2004. On 7 May 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, 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, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 15 September 2009 and final information was received on 7 October 2009.
2. DISCRIMINATORY TREATMENT
2.1. The complainant worked for the respondent on two days a week as a home help and claimed unemployment benefit for the days she was not working. The respondent had been signing the Social Welfare forms to confirm the complainant's work pattern. The complainant submits that during a telephone conversation with her supervisor on 20 November 2006 she was told by the respondent that more work was available. When she told the respondent that she was unable to work more than two days a week because of a back problem they refused to sign the weekly claim forms. The complainant also alleges that she was threatened with dismissal during this telephone conversation. She submits that she was unable to work any more then two days a week because of a chronic back pain which she had declared on her application form and the respondent should have been aware of this and known that she was not able to seek any more work. The refusal to sign the forms resulted in a financial loss to the complainant and she claims this loss only arose because of her disability. She alleges this amounts to discriminatory treatment on the ground of her disability in relation to conditions of employment. Furthermore when she resubmitted the claim claims in May 2008 they were signed by the respondent for three months even though her circumstances had not changed.
2.2. The respondent confirmed that more work was available to the complainant and when she stated that she was not available for this work they decided they couldn't sign the Social Welfare forms. This was because work was available and the forms state that the complainant was available for and genuinely seeking work and in these circumstances they were not willing to endorse a misleading statement. The respondent submits that the decision not to sign the form had nothing to do with her disability and in evidence at the hearing her supervisor stated she was unaware of the complainant's disability before the complainant told her during their telephone conversation in November 2006. The respondent denies that any threat of dismissal was made and also stated that the complainant's existing work of two days per week was not affected, she was not required to take on any extra work and therefore suffered no adverse consequences in relation to her employment with them. The respondent submitted that the forms were signed when resubmitted in May 2008 because no more work was available.
2.3. Issues have arisen as to whether the respondent should have been signing the unemployment benefit forms before November 2006 as the complainant was not available for any more work than the two days she worked for the respondent and also why the respondent started to sign the forms again in May 2008 when the complainant's circumstances had not changed. However, the issue for decision is whether the respondent's refusal to sign the forms in November 2006 amounts to discriminatory treatment within the meaning of the Employment Equality Acts. Section 6 of the Acts states that "discrimination shall be taken to occur where a person is treated less favourably than another person .. has been .. in a comparable situation on any of the grounds." This claim is on the grounds of disability and the respondent does not dispute that the complainant had a disability within the meaning of the Acts. The complainant submitted that the appropriate comparator was a part-time worker without a disability who was not offered extra work and therefore whose forms would continue to have been signed. However, I cannot accept that this amounts to a 'comparable situation' because it was only when extra work was offered that the respondent had to make a decision based on the complainant's response; in this case to no longer sign the unemployment benefit forms. I consider the comparable situation to have been if the worker without a disability or a worker with a different disability had been offered extra work and also declined it. In that situation I conclude that both the complainant and any suitable comparator would have been treated the same by the respondent; in that both their unemployment benefit forms would not have been signed if they had refused the extra work.
2.4. Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. I find that the complainant has failed to provide any evidence which would infer that the respondent would treat any other part time worker who was also unavailable for work and who either has a different disability or who doesn't have a disability differently. Therefore having considered all of the evidence submitted and I find that the complainant has failed to establish a prima facie case of discriminatory treatment in relation to her conditions of employment on the disability ground.
3. VICTIMISATION
3.1. The complainant alleges that she was victimised when she was threatened with dismissal during the telephone conversation in November 2006 when she told her line manager that she had a back injury that stopped her from taking on extra work. This was denied by the respondent. This incident occurred during the telephone conversation which was cited as the first alleged act of discriminatory treatment and therefore cannot be construed as adverse treatment as a reaction to a complaint of discrimination or proceedings brought by the complainant and as such cannot be considered victimisation within the meaning of section 74 (2) of the Acts.
3.2. In June 2009 the complainant submits that the respondent made two visits to her clients to scrutinise her work, this was more than two of her colleagues, who received no visits, and amounts to victimisation arising from making the claim of discrimination. The respondent submitted that home help coordinators were undertaking more monitoring and the complainant was monitored no more than anyone else. I accept the respondent's evidence and find that these events could not be considered victimisation within the meaning of section 74 (2) of the Acts.
4. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts:
- that the respondent did not discriminate against the complainant in relation to conditions of employment contrary to S.8(1)(b) of the Acts on the ground of victimisation, and
- the respondent did not victimise the complainant contrary to section 74 (2) of the Acts.
____________________
Hugh Lonsdale
Equality Officer
9 October 2009