The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-231
PARTIES
A Complainant
(Represented by Mooney O'Sullivan Solicitors)
- V -
A Private Security Firm
(Represented by O'Donoghue & Co., Solicitors)
File reference: EE/2009/123
Date of issue: 8 December 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Harassment - Victimisatory Dismissal - Failure to provide reasonable accommodation - Disability - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment, discriminatory dismissal, harassment, victimisatory dismissal and a failure to provide reasonable accommodation by the respondent on the grounds of disability in terms of sections 6(2), 14A and 74 of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 20 February 2009 under the Acts. On 27 June 2011, in accordance with his 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 20 September 2011. 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 SUBMISSION
2.1 The complainant submitted that he suffers from a long-term slow-learning disability and in receipt of a Disability Allowance from the Department of Social & Family affairs, in conjunction with which he is allowed to take up employment for up to twenty hours per week
2.2 The complainant submitted that he applied to the respondent for employment as a security operative as he had some previous experience of such work. The complainant submitted that he attended for interview and disclosed the existence of his disability to the interviewer and that his disability would be reasonably apparent to an interviewer. He was successful in obtaining employment with the respondent and was employed from July 2008 until August 2008 as a security guard on an occasional basis.
2.3 The complainant submitted that he was given no, or no adequate, training or instruction. The complainant submitted that he was spoken to in an intimidating and humiliating manner by his supervisor on several occasions.
2.4 The complainant submitted that he made a complaint to the company manager, the nature of which was that by his actions, words and demeanour, his supervisor indicated that the complainant was stupid.
2.5 The complainant submitted that no result of any investigation of his complaint was given to him despite several phone calls and that following these phone calls the complainant was dismissed. The complainant submitted that his dismissal followed on from his informing the manager that he would be pursuing the matter with the Rights Commissioners.
2.6 The complainant submitted that to the extent that his disability may have played a part in any unsatisfactory work performance or interaction with the company, the respondent was aware of his disability but made no effort to accommodate the complainant's disability either during his security work for the company or during his interaction with the administrative or disciplinary processes of the company.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent submitted that the complainant applied for a part-time position as a static security guard in June 2008 and that on his application form, he advised that he asthma, but no other condition that may affect his ability to carry out his duties. The complainant was subsequently interviewed for the position and outlined his previous work experience and training in the security industry. The respondent further submitted that at no time during the course of the interview did the complainant indicate that his disability had any affect on his previous work or his ability to complete an industry course. In addition the respondent submitted that when completing his medical questionnaire, the complainant did not indicate that he had any condition which would affect his ability to carry out his tasks.
3.2 The respondent submitted that when the complainant was assigned work at one of its sites, and was given the orientation and instruction briefing, he did not inform any of his supervisors that he suffered from a learning disability, that he did not understand what was required of him or that any of the duties would be beyond his ability to master.
3.3 The respondent denied that any of the complainant's supervisors spoke to him in an intimidating or humiliating manner and the respondent denied that any of their supervisors received any such complaint from the complainant.
3.4 The respondent submitted that in the course of his employment, the complainant repeatedly left his various posts for no valid reason. On one occasion, the complainant left his post as a walkway guard, a post which was particularly important given that there was a strong risk of serious injury to members of the public who used the walkway at certain times. This position must be attended at all times, whether the walkway is in use or not.
3.5 The respondent submitted that it was for this reason that the complainant was suspended from his duties. The respondent further submitted that following his suspension, the complainant contacted on of its Directors on the phone and the Director explained the reason for the suspension to the complainant. The respondent submitted that at that point, the complainant mentioned his disability but was assured that his disability had no bearing upon his suspension. The respondent submitted that at this point the complainant became very abusive to the Director.
3.6 The respondent submitted that it is self evident that anyone employed as a static guard or in the security industry must have a calm and even temperament. The respondent submitted that the Director felt intimidated and also realised that the complainant was not suitable to be a security guard. The complainant's manager was instructed to arrange for the complainant's dismissal.
3.7 The respondent submitted that the complainant was not dismissed by virtue of his disability but by virtue of unsuitability for the post in which he was employed.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the complainant on was subjected to discriminatory treatment, discriminatory dismissal, harassment, victimisatory dismissal and a failure to provide reasonable accommodation by the respondent on the grounds of disability in terms of sections 6(2), 14A and 74 of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of the Acts.
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.
4.3 At the hearing of this matter, the complainant attended the hearing accompanied by his legal representative while the respondent was represented by its legal representative. No witnesses appeared for the respondent and accordingly the only oral testimony before the Tribunal was that of the complainant.
4.4 The complainant stated that he didn't class his disability as a medical condition, that he didn't give the respondent a written diagnosis of his condition, that he informed the respondent of his disability at interview but that he was fully able to do his job. When asked did he ever have a medical diagnosis, the complainant stated that he was examined by the Social Welfare Medical Officer. The complainant stated that he informed the respondent that he could only legally work up to 20 hours per week as otherwise he would loose his social welfare entitlement. Having considered the foregoing, I am not satisfied that the complainant informed the respondent about the existence of his disability from the outset.
Failure to provide reasonable accommodation
4.5 The complainant stated that he sought reasonable accommodation from the respondent, in that he sought to leave before midnight on a number of occasions so that he could catch his bus home. He stated that sometimes they let him leave early. He added that this request was made because he had a travel card rather than being necessitated by his disability. Having considered this information, the complainant's assertion that he was fully able to do the job, and that he did not seek any other special measures to enable him to do the job. Accordingly, the complainant has not established a prima facie case in relation to the failure to provide reasonable accommodation aspect of the complaint and this element of the fails.
Discriminatory Treatment
4.6 The complainant stated that he was given little or no training on site, but confirmed that he was not aware of any other worker being given training when he was not. Accordingly the complainant has not established facts from which it may be inferred that he was treated less favourably than others in this regard and this element of the complaint fails.
Harassment
4.7 The complainant also claims that he was subjected to harassment. Section 14A (7) of the Acts, inter alia, defines harassment as
(a) any form of unwanted conduct related to any of the discriminatory grounds ... being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person"
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.8 The complainant stated that he had a number of verbal arguments with a work colleague who was mocking him and putting him down. He stated that he had no problem with this colleague, that he could stand up for himself and when asked whether he pursued the matter stated that "he just left it". The complainant was not in a position to expand on the language or manner used by this colleague and, as such, has not established facts from which harassment, in terms of the Acts, can be inferred. Accordingly, this element of the complaint fails.
Discriminatory Dismissal
4.9 The complainant was asked about the incident that led to his dismissal. He confirmed to the Tribunal that he did not follow the directions given to him about keeping the gate to the walkway closed because he was standing there and could keep an eye on things from there. He confirmed that this was mentioned to him repeatedly. He also confirmed that he was told that he could not leave his position to go to talk with the first aid personnel and further confirmed that it was this incident that led to his suspension.
4.10 The complainant stated that he made a complaint about his supervisor to his manager and that this was not investigated. The complainant stated that it was for this reason that he made a number of follow-up phone calls to the Director. The complainant confirmed that during one of these phone calls the discussion became quite heated, with both parties using 'robust' language. On the basis of the complainant's testimony and the respondent's written submissions, I do not consider that the complainant was treated in a different fashion to any other person in similar circumstances. I am also mindful of the provisions of Section 16(1) of the Acts in that regard:
16. -- (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual --
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(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.
Accordingly I do not consider that the complainant has established facts from which his dismissal could be linked with his disability and this element of his complaint fails.
Victimisation
4.11 The complainant further claims that he was subjected to victimisation. Under the Employment Equality Acts, victimisation is defined as follows:
(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.
4.12 The complainant stated that during his final phone call with the Director, he advised the respondent that he would be pursuing the matter with the Equality Tribunal and explained the Tribunal's role to the respondent. This element of the complainant's testimony was accompanied by a change in his demeanour, the complainant who had been somewhat hesitant in delivering his testimony, became quite automated in his delivery. Having considered this and the difference between his written submission and oral testimony, I am not satisfied that the complainant has established credible facts from which victimisation may be inferred. Accordingly this element of the complainant also 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 complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of the disability ground has not been established and this complaint fails.
5.3 Having considered all the written and oral evidence presented to me, I find that a prima facie case of harassment on the basis of the disability ground has not been established and this complaint fails.
5.4 Having considered all the written and oral evidence presented to me, I find that a prima facie case of victimisation on the basis of the disability ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
8 December 2011