EQUALITY OFFICER DECISION NO: DEC-E/2010/075
PARTIES
MR. A
(REPRESENTED BY A FIRM OF SOLICITORS)
AND
AN EMPLOYER
File No: EE/2007/446
Date of issue: 14 May, 2010
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8, 16 and 77 - disability- alcoholism- discriminatory treatment - harassment - discriminatory dismissal- reasonable accommodation - burden of proof..
1. DISPUTE
This dispute involves a claim by a complainant that he was (i) discriminated against by the respondent on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998- 2007 and contrary to section 8 of those Acts in relation to his conditions of employment , (ii) harassed by the respondent on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998- 2007 and contrary to section 14A of those Acts and (iii) dismissed by the respondent on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998-2007 and contrary to section 77 of those Acts in March, 2007. The complainant further claims that the respondent failed to provide him with reasonable accommodation to take account of his disability in accordance with section 16 of the Employment Equality Acts, 1998-2007. The complainant is an alcoholic (who has been in recovery since 2005) and requested anonymity in relation to this Decision. The respondent did not object to the application and in the circumstances I have decided to accede to the request.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a master craftsman in July, 1997. He contends the respondent was aware that he had a problem with alcohol from the outset of his employment with it although he considered the working relationship between them to be very good until mid - 2000 when things began to deteriorate. The complainant states that he suffered two unnecessary pay cuts - in 2001 and 2005, that he was assigned duties which were not commensurate with his skill as a master craftsman, that he was continuously chastised and harassed by the respondent, that his attendance at work was monitored and recorded and any absence he had was either deducted from his annual leave entitlement or his wages, that he was excluded from certain decisions which impacted on his employment and that the alleged treatment of him created such a high level of stress on him that he had no option but to terminate his employment with the respondent on 27 March, 2007. He contends that this alleged treatment of him constitutes (i) discriminatory treatment of him, (ii) harassment of him and (iii) discriminatory dismissal of him on grounds of disability contrary to the Acts. In this regard he submits that alcoholism is a disability for the purposes of section 2 of the Acts. The complainant further submits that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Acts. The respondent rejects the complainant's assertions in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2007 to the Equality Tribunal on 24 August, 2007. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 7 May, 2009, the date the complaint was delegated to me. Submissions were received and exchanged between the parties and Hearings were held on 20 August, 2009 and 25 November, 2009. A small number of issues arose which required further clarification and this gave rise to correspondence between the Equality Officer and the parties. This process concluded in late December, 2009.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he commenced employment with the respondent as a master craftsman in July, 1997. He states that the respondent was aware he had an alcohol problem from the first day of employment because his previous employer had told the respondent. The complainant states that he is an alcoholic and has been in recovery since 2005. He submits that alcoholism is a disability for the purposes of the Acts and seeks to rely on the Decision of this Tribunal in An Employee v A Government Department in this regard. The complainant states that although he was drinking his working relationship with the respondent was a good one until mid-2001. He states that in early September, 2001 he met with Mr. J - the owner of the respondent company - and in the course of the discussion he was informed that his salary was to be reduced by £70 per week because the respondent "couldn't afford him". The complainant adds that this conversation was followed up by the respondent with letters dated 19 September, 2001 and 5 October, 2001 the latter of which purported to terminate his employment. The complainant states that he considered resigning at that time but eventually decided to accept the pay reduction and retain his employment. He adds that he was the only employee who had his salary reduced at that time and it is submitted on his behalf that this constitutes discrimination of him on grounds of disability contrary to the Acts.
3.2 The complainant states that he was subjected to a further reduction in salary - €30 per week - in early 2005. He states that he had been absent from work for approximately 5/6 weeks due to his drinking and on his return he met with Mr. J. The complainant adds Mr. J informed him that his salary was to be reduced and when he (the complainant) sought a reason for this action Mr. J responded "you know why". The complainant states that given the circumstances which prevailed at that time he had no objection (at that time) to the reduction in salary. The complainant states that he was the only employee who suffered a pay reduction in 2005 and that the alleged treatment of him constitutes discriminatory treatment on grounds of disability contrary to the Acts.
3.3 The complainant states that his conditions of employment (as set out in his letter of appointment dated 30 June, 1997) provide that the respondent pay him a bonus of "5% of the VAT exclusive sales price of any new saddle" made by him and that this bonus/commission would be paid to him on a monthly basis. The complainant states that he never received this bonus/commission although he raised the matter with Mr. J on at least four occasions. He adds that on these occasions Mr. J informed the complainant that the respondent did not have the money and they would "talk again". The complainant accepts that he received an additional payment at Christmas one year but this was a Christmas gift and not related to the bonus/commission, adding the respondent never mentioned this was the situation at that time. The complainant further accepts that the respondent paid his VHI premium and made additional PRSI payments for him. He adds however that the former element was one introduced by Mr. J which was independent of the bonus/commission issue and he was never informed it was instead of same and the latter arose due to a change in the complainant's PRSI contribution status. The complainant contends that this constitutes less favourable treatment of him on grounds of disability contrary to the Acts.
3.4 The complainant states that the harassment and chastisement of him commenced when the respondent moved to new premises - Location A (details furnished) in April, 2003. He adds that the main perpetrators of this behaviour were Mr. J and Ms. W. The complainant furnished the Tribunal with examples of the alleged comments made to him by those persons over a period spanning four years - until March, 2007. He adds that the relationship between him and Mr. J deteriorated to such an extent that they hardly spoke to each other, although the relationship with Ms. W was somewhat better. The complainant states that the respondent decided to relocate in 2003 and it did not consult or discuss the matter with him until five weeks before the move. He adds that he would have expected the respondent to have done so at an earlier date out of courtesy. The complainant further states that the respondent gave no consideration to the effects of relocation of the business on the complainant's travel arrangements as regards getting to work, particularly as the complainant had to use public transport. He adds that he was required to walk from the train station to the respondent's premises and wait outside for the premises to open - often in inclement weather - and the respondent ignored his request to have some form of a shelter erected for him to protect him from the elements. Finally, the complainant states that the respondent put the business up for sale in September, 2006. He adds that the respondent never discussed the future of the business with him and when he (the complainant) approached Mr. J on the matter he was told "I have no problem making you redundant". The complainant states that the respondent never discussed redundancy terms with him and this left him unsure as to his future employment. Finally, the complainant states that his attendance at work was closely monitored and that all absences were either deducted from his annual leave entitlement or taken as unpaid leave. It is submitted on behalf of the complainant that this constitutes harassment of him on grounds of disability contrary to the Acts.
3.5 The complainant states that sometime after the relocation of the business to Location A, it became apparent to him that business was slow and the items he made were not selling, so much so that he had expected to be put on notice. He adds that around this time the nature of his work changed and as well as making and repairing those items, he also did work on other items of a less skilled nature. He states that this type of work was not commensurate with his skill as a master craftsman and this pattern of work continued until he left the employment. The complainant further states that in mid-2006 he commenced performing tasks for the respondent which were entirely unconnected with his craft. He adds that these tasks involved painting/decorating with a company Mr. J had an involvement in and that he could be engaged on these types of tasks for 2/3 weeks at a time. He was unable to say how often this arrangement occurred. It was submitted on his behalf that this constituted less favourable treatment of the complainant contrary to the Acts.
3.6 The complainant states he was in the kitchen in the respondent's premises on the afternoon of 28 March, 2007 and was washing cups after the lunch break. He states that he was approached by Ms. W who enquired what he was doing. He adds that a heated exchange followed during which Ms. W told him "to get upstairs or get out". The complainant states that this incident had followed closely on another tense exchange between him and Ms. W during stocktaking. He adds that he considered the events of 28 March, 2007 to be the last straw in a long line of bullying and harassment and he left the respondent's premises of his own volition that afternoon and has never returned. It is submitted on his behalf that this constitutes constructive discriminatory dismissal of him contrary to the Acts. He accepts that the respondent had wrote to him on 3 July, 2007 inviting him to contact it and he had not done so, adding that by this stage he was not disposed to engaging with the respondent.
3.7 The complainant asserts that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2007. He submits that he had a disability for the full duration of his employment with the respondent and states that at no time during this period did the respondent make any enquiries, make any assessment or indeed raise the issue of reasonable accommodation with the complainant. It is submitted on the complainant's behalf that the respondent should have taken appropriate measures to accommodate him on four separate occasions - (i) on the coming into force of the Employment Equality Act, 1998, (ii) on the relocation of the business to Location A in 2003, (iii) when the complainant went into recovery in 2005 and (iv) on the transfer of the business to the second named respondent in 2007. The complainant submits a range of authority to the Tribunal in support of his assertions on this matter. He concludes by stating that the respondent might have explored flexibility of his working hours as part of affording him reasonable accommodation.
3.8 The complainant contends that the full extent of his complaint - which spans the period September, 2001-March, 2007 - is validly before the Tribunal for investigation. He states that his complaint was referred to the Tribunal within the statutory six month time limit of the last alleged incident of discrimination as prescribed at section 77(5)(a) of the Acts. He adds that the other alleged incidents of discriminatory treatment and harassment which comprise his complaint are connected to this last alleged incident, in that they relate to his alcoholism and submits that this connection is sufficient to bring the entire complaint properly before the Tribunal for investigation. He seeks to rely on the Decision of this Tribunal in Dunbar v ASTI in this regard.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It does not dispute that alcoholism is a disability for the purposes of the Acts. In addition, it does not offer any response to the timelimit issue other than to say that many of the alleged incidents of unlawful treatment of the complainant occurred more than six months from the date of referral of the complaint to this Tribunal.
4.2 The respondent accepts that it was aware the complainant had a problem with alcohol from very early on in his employment. It rejects however that it was informed of same by the complainant's previous employer and states that it arose as a result of personal observation, in particular the complainant's tendency to absent himself from work without notice, explanation or prior approval. It adds that soon after commencing employment with it the complainant attended for duty under the influence of alcohol and on a number of occasions the complainant was intoxicated and the respondent requested him to leave the premises. The respondent states that it was supportive of the complainant's condition and spoke with him on several occasions about seeking professional help. It adds that on one occasion in 2000 Mr. J took the initiative to bring an acquaintance - who had experience in the area of alcohol abuse - to speak with the complainant in the respondent's workshop and the complainant reacted angrily to this. It states that the business began to encounter financial difficulties in 2000 and the complainant's poor level of productivity was not helping the situation. It adds that by 2001 the complainant's drinking was a real problem and was affecting his productivity and Mr. J took the decision to address the matter, notwithstanding that they had a good personal and working relationship. Mr. J states that he spoke with the complainant in September, 2001 and informed him he was proposing to reduce his salary by £70 per week because of his poor performance and output. It adds that the contents of this conversation were followed up in writing on 19 September, 2001 - when the complainant was also advised he was entitled to refuse the reduction. The respondent states that it wrote to the complainant again on 5 October, 2001 -when he had advised the terms were not acceptable to him - advising that in the circumstances it could not afford his services and gave him notice of termination of his employment with effect form 30 November, 2001. The respondent adds that the complainant subsequently agreed the reduction in salary and the notice of termination was withdrawn. The respondent states that it was not aware the complainant's alcohol problem was a disability in terms of the Acts at that time and rejects that its decision was discriminatory. In the course of the Hearing it confirmed that the complainant was the only one of its employees (totalling six at that time) who had his salary reduced in 2001.
4.3 The respondent states that the complainant's salary was again reduced in February, 2004 (not 2005 as asserted by the complainant). It adds that his rate of salary was continuously reviewed during the period of his employment and was compared to his value to the business. The respondent states that the complainant's attendance and productivity continued to be problematic and it (the respondent) "was not getting a return on its investment". In the course of the Hearing the respondent confirmed that the complainant was the only employee who was subjected to a pay reduction that year. It also confirmed that the Appraisal Process contained in the respondent's Staff Manual were never used in the complainant's case adding that in his (Mr. J's) opinion operating "the formal process would not have yielded a result of recovery" on the complainant's part. The respondent adds that from 1997 until 2003 the complainant was the highest paid employee in the company.
4.4 The respondent accepts that the complainant's conditions of employment (as set out in his letter of appointment dated 30 June, 1997) provide that the respondent pay him a bonus of "5% of the VAT exclusive sales price of any new saddle" made by him and that this bonus/commission would be paid to him on a monthly basis. It states however, that this proved difficult to implement and instead the respondent increased his weekly salary by £20 per week in September, 2000 to offset the potential underpayment. It adds that the complainant also received a bonus of a weeks' wages at Christmas 1999 and 2000. The respondent states that it also paid a contribution towards the complainant's VHI for the duration of his employment and in 2005 made an additional contribution of €436 to the complainant's PRSI liability. It contends that these additional benefits exceed any bonus/commission which the complainant might have accrued. It accepts that the complainant raised the matter with Mr. J as alleged but rejects the complainant's assertion he was not told that the bonus/commission issue was not a practical proposition and that these additional benefits were to compensate for same - Mr. J stated that he informed the complainant of this early on.
4.5 The respondent (Mr. J and Ms. W) accept that the relationship between them and the complainant became strained over the years but reject that they harassed him contrary to the Acts. In the course of the Hearing Mr. J denied making one particular comment attributed to him. He accepted making another comment but stated that it was taken out of context - the comment made was in the context that the craft in which the complainant was involved was in a state of demise in Ireland. He (Mr. J) accepted he made another comment attributed to him and states that this was made in anger in July, 2007 after he had received a letter on behalf of the complainant from his solicitor. Ms. W accepted that there had been an exchange between her and the complainant in January, 2007 but this had nothing to do with his disability. It was merely a disagreement between colleagues. In the course of the Hearing Mr. J stated that in addition to the productivity issues, the complainant had a habit of doing things his way and not following Management's instructions. A specific example of such an incident was furnished by Mr. J and he stated that the complainant's behaviour in this regard created friction between them on a number of occasions. The respondent states that its policy on absences was that if you did not attend work - for whatever reason - you were not paid, except for those absences attributable to annual leave. In the course of the Hearing Mr. J stated that this policy was applied to the complainant in the same manner as any other employee and he rejected that the manner in which the complainant was treated on this matter was not discriminatory in terms of the Acts.
4.6 The respondent states that decision to relocate the business to Location A in April, 2003 was made in the context of ensuring the survival of the business and thus the continued employment of the complainant and the other employees. It adds that the complainant was informed of the move about five weeks before it was due to take place (as were other employees) and submits that it was not obliged to consider the complainant's travel arrangements as part of the overall decision. It further states that the complainant never requested a shelter to protect him from inclement weather and states that in any event there was adequate shelter in the area which the complainant could avail of . The respondent states that trade did not improve and the business was put on the market in September, 2006. The respondent (Mr. J) states that two offers were received to purchase the premises at Location A but they did not materialise and the business transferred to the his daughter and son-in-law in early, 2007. The respondent rejects the complainant's assertions that it created a situation which left him unsure of his future and states that it was the complainant who raised the issue of redundancy. The respondent states that its primary concern was the continued employment of the employees and hence the transfer of the business in early, 2007. It adds that one of the first actions the new Directors did was to award the complainant a weekly pay increase of €20. It therefore rejects the assertion that the complainant was harassed on grounds of disability contrary to the Acts.
4.7 The respondent states that in late 2004 the sale of the items crafted by the complainant had reduced significantly and in fact was that area of business which was consistently making a loss at that time. The respondent ads that other areas of activity (details supplied) were profitable aspects of the business and the complainant was requested to assist in those areas, which he did without objection. The respondent adds that he continued to receive his existing rate of pay during this period. It adds that in 2005 it had an opportunity to make a better profit margin performing property maintenance services and the complainant was again asked to assist in this area of work - which he also did without objection. The respondent adds that it was attempting at the time to retain the complainant in paid employment as it was around this time that the complainant went into recovery for his alcoholism. It rejects the assertion that it constitutes less favourable treatment of the complainant contrary to the Acts.
4.8 The respondent rejects the assertion the complainant was dismissed on 28 March, 2007 and states that he left the premises that day of his own volition after a confrontational exchange with Ms. W. In the course of the Hearing she gave her account of events that day stating that for a number of weeks previous the complainant had developed a pattern of arriving late for work, taking extended lunch-breaks and leaving early. On the day in question she noted he went to the kitchen on return from lunch and remained there for twenty-five minutes. He then proceeded to visit the toilet and as he walked through the area where she worked she asked him "from what time he had taken his lunch today?". The complainant ignored her and as he returned from the toilet she commented to him that he had been late arriving for work that morning. Ms. W states that the complainant became quite aggressive and asked her "who has been telling tales on me". She adds that the conversation became heated and the complainant was shouting at her. He walked up the stairs still shouting and she asked him to come back down and repeat what he said. She adds that one of her young children was in the office and she asked him to stop shouting in front of him. She accepts that when the complainant failed to do so she said "to go back up stair and stop shouting or get out". Ms. W adds that the complainant left the premises a few minutes later without speaking with anyone. The respondent (Mr. J) states that no subsequent efforts to make contact was made by either party until the complainant received a letter from the complainant towards the end of June, 2007 which prompted the respondent's reply of 3 July, 2007 inviting the complainant to contact it to "arrange a mutually convenient time to discuss your employment circumstances". In the course of the Hearing Mr. J stated that it had made no effort to contact the complainant in the months following 28 March, 2007 because the complainant had "went missing for lengthy periods in the past". He adds that the issue of redundancy was touched upon by the parties as asserted but nothing came of it adding that in the circumstances it may well have been the best outcome for all concerned. Instead it sought to retain the complainant in employment - which it considered the best option at the time. In conclusion the respondent rejects the assertion that it behaved in such a manner as contended by the complainant which would have left him with no other choice but to leave his employment. It states that three months before the complainant's departure he gave the respondent a quite expensive Christmas gift of an equestrian themed statute and that it gave the complainant a salary increase of €20 per week. It submits that these actions are inconsistent with the complainant's assertion that he was being unlawfully treated under the Acts.
4.9 The respondent states that from the outset it made every effort to support the complainant with his alcohol problem. It actively encouraged him to seek professional help and when it took more specific steps the complainant admonished it. It adds that it was therefore reluctant to broach the subject to such an extent a second time. It adds that it was extremely tolerant of the complainant's performance and attendance issues and retained him in employment. It involved him in family events and tried to assist him in whatever way it could. In conclusion, it submits that it did everything it could to accommodate the complainant in his employment.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is (i) which elements of the complainant's claim are within time and validly before this Tribunal for investigation, (ii) if the claim, or elements therein, is within time whether or not the respondent discriminated against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 -2007 and contrary to section 8 of those Acts, (iii) whether or not the respondent harassed the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998- 2007 and contrary to section 14A of those Acts, (iv) whether or not the complainant was constructively dismissed by the respondent on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998-2007 and contrary to section 77 of those Acts and (v) whether or not the respondent failed to provide the complainant him with reasonable accommodation in accordance with section 16 of the Employment Equality Acts, 1998-2007. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal. In keeping with the standard practice of the Tribunal in certain cases involving discrimination on grounds of disability, the identities of the parties have been anonymised.
5.2 The first issue which I must consider is whether or not the full extent of the complainant's claim is properly before this Tribunal for investigation. The complainant contends that the alleged unlawful treatment of him spans the period September, 2001 to March, 2007. It is well established in the Decisions of this Tribunal and the Labour Court that if the last alleged incident of unlawful treatment is within time and the other alleged previous incidents are similar and related incidents, then they may form part of the investigation - there is no requirement that the last alleged act must be found to be discriminatory. This approach has been approved by High Court in The Equality Tribunal v Pearse Brannigan . In the instant case the last alleged incident of unlawful treatment is the constructive dismissal of the complainant on 28 March, 2007. He contends that this and all of the previous incidents were due to the fact that he has a disability in terms of the Acts. I am satisfied that the final and all the previous alleged incidents are connected on this basis and therefore find that the entirety of the complainant's claim is validly before this Tribunal for investigation. However, as the allegations span the period during which the employment equality legislation was amended, the appropriate statute(s) will apply for the purposes of my Decision.
5.3 Section 85A of the Employment Equality Acts 1998 - 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment on the grounds specified. 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. If the complainant does not discharge the initial probative burden required his case cannot succeed.
5.4 Section 6(1) of the Employment Equality Acts, 1998 - 2007 defines discrimination as follows -
"For the purposes of this Act .... discrimination shall be taken to occur where -
(a) a person is treated less favourably than another person is, has or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the discriminatory grounds) ....."
This requires the complainant to satisfy this Tribunal that he was, or would be, treated differently as compared with another person and that this difference in treatment is influenced by the impugned discriminatory ground i.e. he was less favourably treated on the basis of his disability. In the instant case I note the respondent accepts that the complainant has a disability in terms of section 2 of the Acts.
5.5 I shall now proceed to examine the substantive aspects of the complainant's claim. The first of these refers to a reduction of £70 in his weekly salary in September, 2001. The respondent accepts that it made this reduction in his salary and that it was premised on the complainant's poor performance and productivity. I note that whilst the respondent's letter of 19 September, 2001 makes no reference to performance and productivity, its letter of 5 October, 2001 does so. I am therefore satisfied that the respondent's actions were influenced by that factor. However, the questions remains whether or not the respondent's actions constitute less favourable treatment of the complainant contrary to the Acts. The complainant was unable to point to another actual employee who was treated differently in similar circumstances. I must therefore examine whether or not the respondent would have treated another (hypothetical) comparator differently in similar circumstances. A number of facts are relevant in reaching a conclusion on this issue. Firstly, the complainant had in excess of thirty (recorded) unauthorised absences that year - in the course of the Hearing the complainant accepted the veracity of this figure. A slightly lower absence rate was recorded in respect of the previous year - which was also accepted by the complainant. The respondent was suffering a downturn in business at the time. The complainant was, by a considerable amount, the highest paid employee in the organisation. In addition, the respondent's evidence on this issue at the Hearing was given by Mr. J. I found him to be a forthright and credible witness, whose evidence I found compelling. Having evaluated all of the evidence advanced by the parties on this matter, I am not satisfied, on balance, that the respondent would have treated a hypothetical employee with the same level of absence as the complainant for whatever reason, in a different manner. Some might consider the actions of the respondent to have been harsh or indeed disproportionate. However, such treatment is not synonymous with discriminatory treatment in terms of employment equality legislation. I therefore find that the complainant has failed to establish a prima facie case of discrimination on this aspect of his complaint.
5.6 The complainant states that he was subjected to a further reduction in salary in 2005, the respondent states this was February, 2004 and produced documentary evidence in this regard. I therefore accept the respondent's evidence as correct. What is not in dispute is that the reduction arose after the complainant had been absent from work, without explanation, for a period of 5/6 weeks. Again the complainant was unable to point to an actual comparator and I must therefore assess the matter on the basis of a hypothetical comparator as in the previous paragraph. The respondent produced data - which was accepted by the complainant - which indicated that the complainant had in excess of fifty (recorded) days of unauthorised absences during the year - which included an absence extending from 5 January to 20 February. The respondent also produced audited account which showed that it made an operating loss in excess of €30k that year. I also note that the complainant stated at the Hearing he did not object to the reduction in salary at that time given the prevailing circumstances. My conclusions in the preceding paragraph apply equally to the issue at hand and I find, on balance, that the complainant has failed to establish a prima facie case of discrimination on this aspect of this element of his complaint.
5.7 The next aspect of the complainant's claim concerns his bonus/commission. It is accepted by the respondent that the complainant's original conditions of employment contained a provision that he was entitled to 5% bonus/commission on the VAT exclusive sale price of every saddle made by him which was sold. It also accepts that the respondent never operated that provision, stating that it was logistically difficult to apply. It states that instead it paid a contribution towards the complainant's VHI. I note that the complainant was the only master craftsman engaged by the respondent and hence there is no other employee in a similar situation to whom he can compare himself. In addition, he was unable to quantify the value of any loss he suffered. Equally, the respondent is unable to offer more than an assertion that the complainant did not suffer a loss as a result of its failure to apply the bonus/commission system. The respondent furnished documentary evidence to the Tribunal which shows that the respondent did not make a VHI contribution to all employees. I also note that the complainant's conditions of employment made no reference to such a benefit and the benefit came into operation in 2000, which is around the time the complainant states he raised the matter with the respondent. I also not that the complainant received a pay increase of £20 per week in September, 2000. I have carefully considered the evidence advanced by the parties on this issue and on balance, I prefer the respondent's version of events at that time - that it replaced the bonus/commission process with the VHI contribution and the pay increase. In light of the foregoing I find that the complainant was not treated less favourably contrary to the Acts in respect of this element of his complaint.
5.8 The complainant contends that the respondent harassed him contrary to the Acts and states that this treatment of him commenced after the respondent moved to Location A in April, 2003. The complainant is however unable to be specific of dates when what he terms the most serious incidents of harassment occurred. As a matter of probability I am satisfied that some of these alleged incidents took place before 18 July 2004 - the date the Equality Act, 2004 came into force. Whilst this Act amended the definition of harassment from that contained in the Employment Equality Act, 1998, it did not alter it (in practice) to any significant extent - in both Acts the alleged harassment must be linked to the relevant discriminatory ground. Section 14A of the Employment Equality Acts, 1998 - 2007 defines harassment as follows:
"...unwanted conduct related to any of the discriminatory grounds.... being conduct which ...has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person."
It is common case that the relationship between the parties was tense from 2003 and that this tension increased over time, particularly as regards Mr. J. In this regard I note that he (Mr. J) accepts he made certain comments to the complainant. Details of these comments were furnished to the Tribunal and I am satisfied that many of them could not be regarded as harassment in terms of the Acts. The remainder could possibly be construed in that manner but I am satisfied that taken in context, they are capable of another construction. I note the Decision of the Labour Court in An Employer v A Worker where the Court held that the incidents complained of by the complainant "both on the face of them and intrinsically, are at least as capable of an innocent explanation as against that claimed by the complainant....." As I stated above I found Mr. J to be a very forthright and credible witness. One of the comments attributed to him by the complainant took place in the course of a telephone conversation with no witness to provide corroboration for either party. In the course of the Hearing Mr. J accepted that he made the comment in anger. I have carefully considered all of the evidence adduced by the parties and I am satisfied, on balance, that these comments are capable of the explanation advance by the respondent. I find therefore that these comments do not constitute harassment of the complainant contrary to the Acts. I have reached a similar conclusion in respect of the comments attributed to Ms. W.
5.9 The complainant further asserts that other alleged treatment of him by the respondent constitutes harassment of him contrary to the Acts. These matters are in relation to (i) the relocation of the business to Location A in 2003 and (ii) the transfer of the business in September, 2006. The complainant states that he got five weeks' notice of the move to Location A and that he thought the respondent would have involved him more in the matter out of courtesy. The respondent states that it was effectively forced into the move to retain the viability of the business. It is clear that the respondent is entitled to make whatever decisions it considers prudent for the business and if there is an obligation on it to consult or liaise with employees in these matters, these requirements arise under legislation other than the Employment Equality Acts. The complainant further states that as a result of the move he was required to use public transport and then walk to his place of work. He adds that this also resulted in his arrival at work earlier than the normal start time and he had to wait outside the building, sometimes in inclement weather. There is no general statutory obligation on the respondent to have regard to the travel arrangements of its employees in reaching business decisions (in this regard I note that the original and new location for the business were only 10km apart), nor is there any requirement to provide shelter for its employees from inclement weather. I find therefore that the any failure on the respondent's part on either of these issues cannot be considered harassment in terms of the Acts. I have reached a similar conclusion in respect of the alleged events surrounding the sale of the business in 2006. Finally on this point, the complainant alleges that the respondent monitored his absences from work and deducted these absences from either his annual leave entitlement or salary. In the course of the Hearing the complainant stated that Ms. W asked him on only one occasion if he had attended the doctor as asserted by him at the time. This could not be construed as harassment against the backdrop of the significant volume of absence the complainant had - in this regard I note the complainant accepted the veracity of the respondent's records in respect of his absences. The respondent also stated it was its policy if an employee was absent that the absence was either taken as annual leave or treated as unpaid leave. It states that it merely applied its policy to the complainant. I am satisfied that this was the case and in the circumstances I find that the manner in which the respondent treated the complainant does not amount to harassment of the complainant on the grounds of disability contrary to the Acts.
5.10 It is common case that the complainant performed tasks which were linked to the main business activities of the respondent but were not necessarily commensurate with his position as a master craftsman. The complainant submits that this amounts to discrimination of him on grounds of disability. I cannot accept this proposition. The complainant states that (i) he did not object to the tasks at the time and he did not view them as less favourable treatment of him due to his condition, (ii) he continued to receive the same rate of remuneration notwithstanding he was performing less skilled duties and (iii) the alternative (redundancy) was not a palatable option for him. In addition, I am satisfied that the respondent had financial difficulties at the time and the main area of work in which the complainant was involved was in decline. In the circumstances this cannot constitute unfavourable treatment and the complainant has failed to present any evidence as to how it might constitute less favourable treatment in comparison to others contrary to the Acts. I therefore find that the complainant has failed to establish a prima facie case of discrimination in respect of this element of his complaint. The complainant makes a similar assertion in respect of the property maintenance type duties he commenced in 2005. I note that he is unable to say how often he performed these types of duties but he again stated in the course of the Hearing that he did not object to the work at that time. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination contrary to the Acts in respect of the matter.
5.11 The complainant also contends that he was constructively dismissed on 28 March, 2007 stating that events of that day were the "last straw" in a line of bullying and harassment, the effect of which was that he decided he could no longer work for the respondent. Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so ...."
In An Employer v A Worker (Mr. O No.2) the Labour Court comprehensively addressed the issues of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts. In addition, the Court held "that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case"
5.12 In the instant case I am satisfied that the "reasonableness" test is the more appropriate. It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that he could not fairly be expected to endure it any longer and he was therefore entitled to resign from its employment. However, the unreasonable behaviour of the respondent and the resultant treatment of the complainant must be linked to the discriminatory ground - disability in the instant case. I have already found in the preceding paragraphs that the alleged treatment of the complainant does not constitute either discrimination or harassment of him contrary to the Acts. The exchange between the complainant and Ms. W on 28 March, 2007 was heated but I cannot accept that it was either unreasonable behaviour on the part of the respondent - Ms. W was in my view entitled to challenge the complainant on his attendance pattern that day - or that it was in any way linked with his disability. In addition, I note that subsequent to that date the respondent - albeit prompted by correspondence from the complainant - invited the complainant to engage with it to discuss his employment situation. In the course of the Hearing the complainant stated that by this stage he was no longer interested in engaging with the respondent. Three other issues are appropriate for consideration on this issue. The first of these is that the respondent awarded the complainant an increase in salary of €20 per week in January, 2007. Secondly the complainant gave the respondent a rather expensive present at Christmas 2006 and finally in the course of the Hearing the complainant acknowledged on several occasions that the respondent had been "very tolerant" with him over the years. In my view these facts are inconsistent with the assertion that the respondent was acting in a manner which was both discriminatory and unreasonable towards the complainant. In light of my comments above I find that the complainant has failed to establish a prima facie case of constructive discriminatory dismissal in terms of the Employment Equality Acts, 1998 - 2007.
5.13 The final element of the complainant's case concerns the failure of the respondent to provide him with reasonable accommodation in terms of section 16 of the Acts. However, prior to the coming into force of the Equality Act, 2004 on 18 July, 2004 there was no free standing cause of action available to a complainant in relation to an employer's failure to provide reasonable accommodation to an employee with a disability under employment equality legislation. Therefore my investigation will not examine any alleged failure on the respondent's part which is prior to that date. However, that position has changed under the amended statutes. In Ms. Z v A Chain Store the Equality Officer found that Article 5 of the Framework Directive created an independent requirement on an employer to provide reasonable accommodation in a particular case. The Equality Officer went on to hold that "in order to give unfettered effect to that Article of the Directive subsection 16(3)(b) of the Acts must be considered to create an independent cause of action without the need for a respondent to rely on the defence in subsection 16(1)...". and went on to apply subsection 16(3)(b) of the Acts accordingly. I accept the Equality Officer's conclusions on this point and adopt them in full in the instant case.
5.14 Section 16 of the Employment Equality Acts, 1998 - 2007 provides as follows -
"(1) Nothing in this Act shall be construed as requiring any person to... retain an individual to a position, ....if the individual - .....
(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 - ....
(ii) to participate or advance in employment ....
unless the measures would impose a disproportionate burden on the employer.".
5.15 The purpose of the section is to place employee with a disability on the same level as those who do not have a disability (or have a different disability). During the period covered by the complaint, the complainant was drinking for part of it and was in recovery for the remainder. It is clear that during the period when he was drinking the complainant was absent from work on a regular basis - sometimes for several weeks. It is accepted by the complainant that during this period the respondent had discussed the prospect of him (the complainant) seeking professional help for his alcohol problem - indeed the respondent brought someone to speak with him in 2000/2001 and the complainant berated him for it. The respondent also retained the complainant in employment despite the difficult circumstances which prevailed. I note that the National Institute on Alcohol Abuse and Alcoholism (Maryland USA) publication "Alcoholism - Getting the Facts" states "Although alcoholism can be treated, a cure is not yet available. In other words, even if an alcoholic has been sober for a long time and has regained health, he or she remains susceptible to relapse and must continue to avoid all alcoholic beverages. Cutting down on drinking doesn't work; cutting out alcohol is necessary for a successful recovery." In the complainant's case progression to refraining from alcohol altogether commenced in 2005 - when he went into recovery. It is common case that the demand for the items crafted by the complainant declined significantly during 2004/2005. At that stage the respondent might well have explored the option of making the complainant redundant - just around the time he was commencing recovery for his alcoholism. Instead, it retained him in employment, albeit on less skilled tasks and maintained his salary level. Section 16(3)(b) of the Acts places an obligation on the respondent to take appropriate measures to enable the complainant, inter alia, to participate in employment. It is difficult to see what other action it could have engaged in to achieve this outcome other than what it did. In the circumstances of this particular case I find that the respondent provided the complainant with reasonable accommodation in terms of section 16 of the Acts and his complaint cannot therefore succeed.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complaint was referred within the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998 - 2007 and the entirety of the complaint is validly before this Tribunal for investigation.
(ii) the complainant has failed to establish a prima facie case of discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts 1998- 2007 and contrary to section 8 of those Acts.
(iii) the complainant has failed to establish a prima facie case of harassment on grounds of disability in terms of section 6(2) of the Employment Equality Acts 1998- 2007 and contrary to section 14A of those Acts
(iv) the complainant was not dismissed in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts 1998- 2007 and contrary to section 77 of those Acts.
(v) the actions of the respondent during the period of the complainant's employment with it does not constitute a breach of its obligation under section 16(3)(b) of the Employment Equality Acts, 1998-2007
and the complainant's case fails in its entirety.
_______________________________
Vivian Jackson
Equality Officer
14 May, 2010