The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-059
PARTIES
Ryan
(Represented by Fionnuala Ryan)
- V -
Dublin Airport Authority
(Represented by BCM Hanby Wallace, Solicitors)
File reference: EE/2009/279
Date of issue: 30 April 2010
Keywords - Employment Equality Acts - Discriminatory Treatment - Victimisation - Disability - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr James Ryan that he was subjected to discriminatory treatment by Dublin Airport Authority on the grounds of disability in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to sections 8 of those Acts. The issue of victimisation, as outlined in Section 74 of the Acts, was also raised by the complainant.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 5 May 2009 under the Acts. On 21 October 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 24 February 2010. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was employed as a Maintenance Electrician by the respondent since 6 December 1999. The complainant was diagnosed with an autoimmune disease of the liver and has been informed by two consultants that he will need a liver transplant. The complainant submitted that this medical condition is aggravated by stress and its main symptom is fatigue which is severe in the evening onwards, even if he has slept during the day.
2.2 The complainant submitted that he has been discriminated against in his employment because of his disability and has been repeatedly and consistently denied reasonable accommodation.
2.3 The complainant submitted that the respondent has repeatedly challenged him and refused to accept the complainant's own doctors and consultants reports and certificates regarding his medical condition.
2.4 The complainant submitted that, in direct contrast, the respondent has already accommodated another employee working in the same section who has a disability.
2.5 The complainant submitted that the respondent has refused to take appropriate and identifiable steps to reasonably accommodate his needs by not meeting with him to discuss and assess his medical needs, providing any shift changes, rearranging work hours, assurances of anti-victimisation and harassment integration and facilitation guidance.
2.6 The complainant submitted that he was further discriminated against and victimised by being placed on sick leave or certain unnecessary conditional shifts and most recently being instructed by the respondent to remain home on sick pay, which was then changed to health and safety leave.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that the complainant is employed as an Airfield Electrician. The roster of attendance for Airfield Electricians, which was designed by the Electricians themselves, is set out one year in advance ensuring a fair distribution of night and day shifts.
3.2 The respondent submitted that the complainant cites a fellow employee, Mr A, with a disability who was treated in a more favourable manner in that he was facilitated with daytime shifts only. The respondent submitted that when Mr A brought his disability to the attention of the respondent, it sought an opinion from an Occupational Health specialist, Dr B, as to whether Mr A was fit to carry out his duties or whether measures were needed to accommodate that employee to carry out his duties. The respondent submitted that exactly the same process was followed when the complainant brought this to the respondent's attention, including seeking an opinion for the same Occupational Health specialist, Dr B.
3.3 The respondent submitted that based on the reports it received from Dr B, which stated that Mr A's disability was triggered by working nights, he was accommodated with day shifts. Dr B advised that in the case of the complainant that he was fit to work at night and to work shifts. Accordingly he was not facilitated with daytime shifts only. The respondent submitted that its decision was not based on the disability of the employees but on the opinions procured from the Occupational Health specialist, Dr B.
3.4 The respondent submitted that it was accused of the victimisation of the complainant but was provided with no particulars other than what was referred to as 'deliberate and malicious questioning of the veracity and genuineness of the complainant's medical condition'. The complainant submitted that it assumes that this refers to the steps it took to ascertain whether or not the complainant was fit to work.
3.5 The respondent submitted that between October 2008 and April 2009, it was pursuing a number of matters concerning the complainant's conduct. The respondent submitted that these issues were extant prior to the complainant lodging a complaint or seeking accommodation measures and therefore could not constitute victimisation. The respondent submitted that the original referral of the complainant to Dr B was in line with its usual approach to absence from work on a number or occasions or for a lengthy period.
3.6 The respondent submitted that in relation to one matter of concern it conducted an investigation into a failure to replace a light regulator part. The investigation centred on two employees. Those employees were invited to attend an investigative meeting. They were advised that they could bring a union representative/shop steward/work colleague as their representative, to the meeting. The complainant refused to participate without a solicitor present. As a result of his refusal to attend the investigation, disciplinary proceedings were instigated against him.
3.7 The respondent submitted that the complainant refused to attend the disciplinary proceedings on medical grounds. Accordingly, the complainant was referred to Dr B. The occupational health specialist advised the respondent that although it was seeking clarification for the complainants own doctor's regarding his fitness to work, the complainant was fit to take part in meetings on internal issues. Notwithstanding this, the respondent decided to postpone the meetings on internal issues until Dr B advised it that the complainant was fit to return to work. In the meantime, the complainant was advised to remain at home on full pay. The respondent continued to keep the complainant informed as to developments.
3.8 The respondent submitted that, ultimately, it was Dr B's recommendation that the complainant was fit to return to work and the respondent made their decision on that basis. Dr B concluded that "it is reasonable to state that this gentleman can be considered fit to return to employment, without restriction, at this point in time ... this will need to be reviewed on an ongoing basis". Consequently the respondent wrote to the complainant and advised him of the contents of Dr B's report and indicated his return date.
3.9 The respondent submitted that in the meantime, the complainant attended a disciplinary hearing on 23 April 2009 and was given a final written warning as a disciplinary sanction. This decision was appealed to an employee who had not previously been involved with any of these issues and the decision was upheld.
3.10 The respondent submitted that the complainant did not return to work on the indicated date and did not contact his employer. On his eventual return, the complainant handed in another medical cert (from his own GP) upon which the respondent sought additional occupational health advice from Dr B. Dr B informed the respondent that he would contact the GP to clarify matters but that in the meantime some consideration should be given to an accommodation to facilitate the complainant's return to work. An accommodation was offered to the complainant whereby he would work part shifts, the remainder then being covered by sick leave.
3.11 The respondent submitted that the complainant then furnished an additional medical report. Having liaised with Dr B, the complainant was referred to a Consultant and advised that he would receive sick pay during this period. Following receipt of correspondence the indicating that the complainant may suffer hardship, the respondent then amended the type of leave to health & safety leave in order to preserve the complainants level of income and sick leave status.
3.12 The respondent submitted that the consultant concluded that "the complainant should be able to perform full duties including night work and that a period of phasing back into full shifts would be recommended and appropriate". The respondent submitted that the complainant's return to work was arranged to take place on a phased basis. The complainant continued to assert that he was not fit to work nights or shiftwork.
3.13 The respondent submitted that the complainant has not turned up for work and ultimately was taken off the payroll.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Mr Ryan on the ground of disability, in terms of section 6 of the Acts and contrary to Section 8 of those Acts. The issue of victimisation was raised in the complainants application form and accordingly is also an issue for me to decide upon.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
Discriminatory Treatment:
4.3 In the case of Dyflen Publications Limited v Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
4.4 The basis of the complainants claim is that he was treated less favourably than others on the basis of his disability. In the instant case it is useful to consider the Labour Court's comments in the case of 'A Health & Fitness Club v A Worker' (Determination No EED037, ED/02/59)
(Section 16) "on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions."
4.5 Although the present case is not concerned with discriminatory dismissal, a number of key principals of relevance arise from the Labour Court's deliberations in the foregoing case. There is an onus on the employer to make adequate enquiries so as to establish fully the factual position in relation to the employees capacity and to ensure that they are in possession of all the material facts. The respondent in the instant case considered the medical evidence given by the complainant and obtained independent evidence from the occupational health specialist. The complainant was allowed to present relevant medical evidence and submissions. In summary the advice the respondent received was that the complainant was fully capable of undertaking his duties. The complainant was allowed further opportunities to present additional medical evidence which was referred to the occupational health specialist repeatedly for consideration. The ultimate conclusion of the occupational health specialist continued to be that the complainant was fit to undertake his duties.
4.6 In summary, the complainant submitted medical opinions that he was unfit to carry out his duties to the respondent on a number of occasions. The respondent, in turn, submitted those opinions to Dr B, the Occupational Health Specialist, for consideration. On a number of occasions, Dr B considered the opinions, consulted with the authors of those opinions, sought clarification from an independent specialist consultant, and then came to his own opinion that the complainant was fit to undertake his duties, to work nights and to undertake shift work. Dr B's opinion was then communicated to the respondent who made their decision based on that opinion. It is not the place of the Tribunal to assess contradictory medical opinions and I do not prefer one opinion over another. Rather, it is for me to consider whether the respondent has satisfied the test laid down in 'A Health & Fitness Club v A Worker'.
4.7 Having considered the procedures followed by the respondent and the lengths they went to in order to establish the factual position, I am satisfied that the decision reached by the respondent that the complainant was fit to undertake his duties amounts to a bona fide belief. Section 16(3) and the consideration of what appropriate measures are needed to enable a person to undertake their duties only arises where an employee is not fully capable of undertaking their duties. Therefore, the respondent was not obliged to consider the issue of appropriate measures.
4.8 In this case, the respondent employed a similar procedure in relation to both the complainant and his colleague when considering their claims of disability and I can find no evidence that the complainant was treated in a less favourable manner than any other employee. Therefore, I am not satisfied that the complainant has established facts from which discrimination may be inferred.
Victimisation:
4.9 In relation to the issue of victimisation raised by the complainant, it was suggested that the failure to take the complainants medical evidence at face value and instead refer it to an occupational health specialist amounted to victimisation under the Acts. Section 74(2) of the Acts states:
(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to --
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
4.10 Having regard to the foregoing consideration by the labour court of the duties of an employer to establish fully the factual position relating to an employees capacity, I am not satisfied that any evidence that the respondent has victimised the complainant, in accordance with Section 74(2), has been adduced by the complainant. Accordingly, I cannot find evidence to support a claim of victimisation and this element of the complaint fails.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the disability ground has not been established and this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie claim of victimisation on the basis of the disability ground has not been established and this element of the complaint also fails.
Conor Stokes
Equality Officer
30 April 2010