The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-001
PARTIES
Finbar Burke
(Represented by Siobhan Phelan instructed by
The Equality Authority)
AND
BostonScientific
(Represented by Imogen McGrath instructed by
McCann Fitzgerald)
File reference: EE/2007/081
Date of issue: 7 January 2010
HEADNOTES: Employment Equality Acts, 1998-2008 Sections 6 and 8 - Employment - Discriminatory Treatment - Disability - Conditions of Employment - Failure to provide reasonable accommodation - Equal Pay - Time limits
1. DISPUTE
1.1 This dispute concerns a claim by Mr Finbar Burke that he was discriminated against by Boston Scientific, formerly Guidant Ireland Ltd. on the grounds of disability contrary to section 6(2)(g) of the Employment Equality Acts 1998-2008 in relation to conditions of employment and a failure to provide reasonable accommodation in terms of sections 8(1)(b) and 16(3) of the Acts and he made a claim for equal pay in terms of section 29 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 14 February 2007 under the Employment Equality Acts 1998 and 2004. On 21 January 2009, in accordance with her powers under section 75 of the Acts, the Director 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, 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 1 September 2009. Final information was received on 14 October 2009.
2 SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submits that he started working for the respondent, then known as Guidant Ireland Limited, on 21 April 2001. He had an existing heart condition and was medically examined before starting work for the respondent, during which he fully revealed the nature of his condition to the respondent's medical advisors. The complainant was absent from work because of his heart condition from February to July 2005, involving heart surgery in April 2005.
2.2 The complainant submits that before 2005 management had raised issues about his level of absence but no disciplinary issues had been initiated and in every year until 2005 he got a merit award following his annual appraisal. At his annual Performance Appraisal in June 2005 he did not get a pay increase and the complainant submits that he was criticised for his absence and was told that he needed to focus on reducing his absence to an acceptable level. The complainant considered that he had been penalised because of his disability and appealed the Performance Appraisal. He met with the Managing Director in August 2006 who denied discrimination and did not accept that his condition was a disability. The complainant considers this was discriminatory treatment because of its impact on his future pay and pension.
2.3 The complainant met with his supervisor in October 2005 and was advised that because of his absence from February to July 2005 his annual leave entitlement for that year was reduced by 55.22 hours. He therefore considers that this was discriminatory treatment arising from his disability.
2.4 Following his return to work in July 2005 the complainant had to attend a number of medical appointments in Cork which required him to take a whole day off. When he met an HR representative it was suggested that he should “accommodate the company” by rescheduling the appointments, taking annual leave or working-up time that he could then use for the appointments. The complainant submits that the respondent had a contractual obligation for paid sick leave. Also, because of their failure to pay for the time off to attend these appointments, he lost income as he was not able to get premium payments for overtime worked as he had to use this time to work up time for the medical appointments. The complainant submits that this caused him distress at the financial losses and considers that the respondent failed to provide him with reasonable accommodation in attending these appointments.
2.5 The complainant submits that because of the loss of pay and overtime payment and paid annual leave he now has an equal pay claim and names Ms Ann O’Mahony as his comparator. His claim is that he should be put in the same position regarding pay as if he had received a pay rise in 2005; that his overtime and annual leave should be restored.
3 SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denies any discrimination and submits that during 2005 the respondent was unfit 69% of the total working time. Therefore he was not treated less favourably because of his disability but differently because he did not undertake his duties at work.
3.2 The respondent submits that bonuses and merit increases are discretionary and merit increases are linked to the amount of work which an employee actually does. The complainant’s absence meant that he did not perform the same amount of work as someone else did who was not absent from work. The respondent submits that they complied with section 29 of the Acts which gives employees the right to the same rate of remuneration for the work performed. The respondent also relies on section 35(1) of the Acts which states: “Nothing in this part or part 2 shall make it unlawful for an employer to provide, for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of the disability, the amount of work done by the employee during a particular period is less than the amount of work done, or which could reasonably be expected to be done, by that period by an employee without the disability.” The respondent further relies on Equality Tribunal Decision DEC-E2008-011, Mr D v A Government Department which held that it was not discriminatory to withhold the payment of an increment on the basis of poor attendance and punctuality by a person with a disability.
3.3 The respondent submits that because of the complainant’s absence from work they had to re-assess his annual leave entitlement in accordance with the Organisation of Working Time Act, 1997, as they would have done with anyone else in a comparable situation.
3.4 The respondent submits that they provided the complainant every facility to attend medical appointments and no restriction was placed on him. The company developed a system for the complainant that allowed him to work up time in advance of appointments to get paid time off. The respondent considered that this part of the claim had been settled.
4 PRELIMINARY ISSUE
4.1 The complainant has made claims of discriminatory treatment in relation to three issues; loss of pay arising from a performance appraisal, reduction of annual leave and time off for medical appointments, as well as an equal pay claim in relation to the loss of pay arising from the performance appraisal. The respondent raised a preliminary issue that the performance appraisal and reduction of annual leave are out of time in accordance section 77(5) of the Acts. They contended that the claim was made on 14 February 2007 but the decisions regarding both his performance appraisal and reduction of annual leave took place in 2005 and submitted that they were one-off decisions even if there were continuing consequences and relied on Equality Tribunal Decision DEC/S2001/204, Green v Quinn Direct and Amies v ILEA (1977) ICR 308. The complainant’s internal appeal regarding his Performance Appraisal was not made until January or February 2006 some seven or eight months after the event (July 2005) and his further appeal to the Director of Operations Director resulted in the meeting in August 2006. At both of these meetings the complainant was told that the decision at the Performance Appraisal was not being reviewed. The decision regarding the reduction of annual leave was made in October 2005 and the complainant did not raise the issue again until he submitted this claim.
4.2 The complainant submitted that both decisions had a continuing impact and are therefore in time. However if this were accepted then such acts could be the subject of a claim at any time in the future. This is clearly beyond the intention of applying time limits to such claims. I am persuaded by the approach taken in Sougrin v Haringey Health Authority¹ that the decisions are seen as a once-off act with continuing consequences rather than an act extending over a period of time. As such the date of discrimination is clearly the date of decision.
4.3 The decision in relation to the reduction of annual leave was not disputed by the complainant until he made this claim, 16 months later, and is therefore out of time.
4.4 The complainant did make an internal appeal about his performance appraisal in 2005 and subsequently met the Director of Operations and on both occasions the original decision was reaffirmed. The approach generally taken in this situation is set out in Cast v Croydon College²which states that: “a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision, providing that there has been a further consideration to the matter and has not merely reiterated or referred back to the earlier decision.” My conclusion is that on both occasions the decisions were a reiteration of the original decision and do not constitute a new decision; no new information was available to, or taken into account by, the respondent. I therefore conclude that the time line in this case started from July 2005 when the first decision was made and as the complainant submitted his claim of discrimination in February 2007 the claim in relation to discriminatory treatment in relation to loss of pay is out of time.
5 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision are whether the complainant was discriminated against in relation to time off for medical appointments both in terms of conditions of employment and a failure to provide reasonable accommodation and if he has a claim for equal pay on the grounds of disability. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
TIME OFF FOR MEDICAL APPOINTMENTS
5.2 The complainant needed to attend 4-6 medical appointments per year that required him to take either a half day or a full day off work. He contends that the respondent's failure to give him paid time off for these appointments was contrary to the respondent's contractual obligation whilst the respondent contended that there was no such contractual obligation. In order to accommodate the complainant the respondent allowed him to work up time and then use it for the appointments. The complainant contends that as a result he lost premium pay for the time worked.
5.3 The Respondent's Employee-Owner's Manual makes no reference to paid time off for medical appointments and the complainant provided no evidence that he had been treated less favourably than anyone else in a comparable situation, as required by section 6 of the Acts. I therefore find that he has been unable to demonstrate a prima facie case in relation to this part of his claim.
EQUAL PAY
5.4 Although the claim for discriminatory treatment in relation to his loss of pay is out of time these time limits do not apply to equal pay claims in which the 'relevant time' as defined in section 19.2 of the Acts is, "the 3 years which precede, or the 3 years which follow" the date of the claim. I must consider the complainant's equal pay claim on the basis that he did not receive a pay rise because of a poor assessment at his annual appraisal in 2005 and that this poor assessment arose because of his disability. His comparator (Ms Ann O'Mahony) was someone without a disability whom he claimed did receive a pay rise at her 2005 annual assessment. The complainant was unable to confirm his comparator's pay but did concede that at the time of the assessment in 2005 she was probably earning less than him as she had started two years after the complainant. The respondent provided pay details for the complainant and the comparator prior to and subsequent to the 2005 performance appraisal. Before the appraisal the complainant was on a salary €60 per annum more than the complainant, subsequent to the appraisal he was earning €732 less.
5.5 They confirmed that following the takeover of Guidant Ireland by Boston Scientific they have consolidated their HR practices and currently staff with absences have their assessments based on their performance whilst at work. Consequently the complainant had the pay increase he claims he should have received in 2005 restored to him fully in 2008.
5.6 The complainant and the comparator were working in the same grade and were recruited a year apart but at the same starting salary. Thereafter they received annual appraisals which resulted in an increase to their salary, apart from the complainant in 2005. The respondent states this was because the complainant was absent for 69% of the year stopped him from doing his job. They contend that anyone absent for the same period would have been treated the same way. The complainant contends the loss of pay arose because of his disability, which was the cause of his absence.
5.7 The allegations of discrimination which resulted in loss of pay arose because the complainant was absent for a large period of time. This absence was a result of the complainant's heart condition but I have to see if anyone else in a comparable situation would have been treated the same. An appropriate comparator would have been someone else would had been absent for a significant period of time and either does not have a disability or has a different disability. The comparator was someone without a disability but who had not been absent for a significant period of time. I therefore find her to be an inappropriate comparator and the complainant is unable to establish a prima facie case in relation to his equal pay claim
6 DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts:
· that the claims in relation to discriminatory treatment in relation to loss of pay arising from a performance appraisal and reduction of annual leave were not lodged in accordance with the time limits provided for in section 77 (5) (a) of the Acts and I therefore have no jurisdiction to investigate the claims.
· that the respondent did not discriminate against the complainant in relation to his claim for discriminatory treatment regarding time off for medical appointments
· that the respondent did not discriminate against the complainant in relation to his claim for equal pay.
___________________
Hugh Lonsdale
Equality Officer
7 January 2010
¹ Sougrin v Haringey Health Authority, Uk Court of Appeal, 1992 ICR 650
² Cast v Croydon College, Court of Appeal [1998] IRLR 318