EQUALITY OFFICER'S DECISION NO: DEC-E/2011/014
PARTIES
MR. GERALD BUCKLEY
(REPRESENTED BY HUGHES AND LIDDY -SOLICITORS)
AND
BOARD OF MANAGEMENT ST JOSEPHS JUNIOR SCHOOL
(REPRESENTED BY MASON HAYES AND CURRAN- SOLICITORS)
FILE NO: EE/2009/217
DATE OF ISSUE: 31 JANUARY, 2011
Dispute
This dispute involves a claim by Mr. Gerald Buckley , that he was discriminated against by the Board of Management of St Josephs Junior School, on grounds of his disability, in terms of section 6 (2)(g) and contrary to section 8 of the Employment Equality Acts, 1998 to 2008 in relation to his conditions of employment and that he was harassed by the respondent on the same grounds contrary to section 14(A) of the Acts. The complainant also claims that he was victimised contrary to section 74(2) of the Acts and that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Acts.
2. Background
2.1 The complainant referred a complaint against the above named respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 1 April, 2009.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 2nd of June, 2010 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing on 24th September, 2010. On the day of the hearing the representative for the complainant reduced the scope of the claim as outlined in the EE1 form and indicated that he was no longer pursuing a claim in relation to harassment.
3. Summary of complainant's case
3.1 The complainant has been employed by the respondent since the 23rd of May 2006. The complainant states that he is an insulin dependant diabetic and that he was employed as a Caretaker, by the respondent, during the period. He submits that he made the respondent fully aware of his condition prior to his commencement of employment.
3.2 The complainant submits that he was subjected to discrimination in relation to his conditions of employment in that he was required to show evidence of and proof of attendance at medical appointments when no other members of staff were asked to submit same.
3.3 The complainant further submits that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Acts when on 6th of March 2009 the respondent removed a secure and private facility in which to change clothes, check blood sugars, take insulin and store clothes and personal effects including his diabetic kit (insulin, needles, used and unused lancets). The complainant submits that he had been using this facility since the beginning of his employment with the respondent. The complainant states that he began working for the Respondent as a caretaker in May 2006 at which time he was provided with a facility known as the caretakers room, it is submitted that the Principal of the school provided the claimant with a key to this room and that she herself also had a key. Further it is submitted that there was a steel locker in this room within which the claimant stored his diabetic kit including needles and insulin. Both the complainant and the Principal had keys to this locker. The complainant used this room to store and administer his insulin up to March 2009. The complainant submits that on 6th March 2009 this room R09 was taken from the him and he was provided with another room in its place. It is submitted that the replacement room R46 had no key to the door and no privacy and was not suitable for storing and injecting insulin. The complainant submits that he has to partially remove his trousers to administer his insulin into his thigh and thus cannot do this in a place which can be accessed by other people. He further submits that it was not a safe place for storing insulin as there was no locker and in its place he was given a petty cash box with a lock in which to store his diabetic kit, but submits that this could be picked up and carried away by anyone as it was portable unlike the previous steel locker which he had used for the same purpose. The complainant submits that when he complained of the inadequacy of the replacement facilities the respondent suggested that he store his insulin in his car and inject himself in the toilets. It is submitted by the complainant that toilets were an unsuitable place to inject insulin due to hygiene concerns.
3.4 It is submitted that on 20th April 2009 a letter issued from the respondent asking the complainant to provide a letter from his consultant indicating what facilities he requires for storing and injecting insulin. The complainant replied to this letter himself on 22nd April indicating what facilities he required. Further requests for a letter from his consultant issued from the respondent and the complainants consultant replied to the respondent on 19 September 2009. This letter indicates that the complainant is recommended to inject insulin 4 times a day and that he requires a suitable area away from students with an appropriate degree of privacy in which to do this. It also recommends a suitable storage area for his diabetic kit where it could not be accessed by students. The complainant submits that the lack of facilities and the ensuing stress resulted in his being absent from work on sick leave for several months.
3.5 The complainant also submits that he was victimised contrary to section 74(2) of the Acts as he submits that the removal of the secure and private storage facility, (Room R09) in March 2009, was a punitive measure put in place by the respondent as a result of his making a complaint of discrimination on the disability grounds (by letter to the respondent dated 11th November 2008)
3.6 The complainant submits that a second act of victimisation took place in January 2010 when the respondent referred him for a psychiatric assessment prior to allowing his return to work after a period of sick leave. The complainant was out on certified sick leave from May 2009 until January 2010 when he was certified fit to return to work by his doctor however, it is submitted that, the respondent refused to allow him to return to work until he had seen a psychiatrist. An appointment was set for 28th January 2010 at which the complainant attended but sought clarification on the purpose and extent of the psychiatric report before proceeding with the assessment. The complainant has since been suspended from work without pay. The complainant was removed from the payroll in July 2009 at which point the respondent submits he had exhausted his sick leave entitlement of 90 days in the school year. It is submitted on behalf of the complainant that the Board of Management's decision to refer him for a psychiatric evaluation occurred as a result of his complaint of discrimination and that it constitutes an act of victimisation.
4. Summary of respondent's case
4.1 The respondent denies that it discriminated against the complainant whether on grounds of his disability or at all. The respondent accepts that the complainant is a disabled person for the purpose of Acts and that he made the respondent aware of the fact that he suffers from Type 1 diabetes at the commencement of his employment. The respondent submits that the complainant did not indicate, at that time, that he required any special facilities. It is submitted that the respondent at all times sought to accommodate the complainant in terms of his requirements to control his diabetes.
4.2 The respondent submits that the complainant has not submitted any evidence of "less favourable treatment" on grounds of his disability. It is submitted that the complainant has not been treated "less favourably" than another member of staff who does not have diabetes or another disability.
4.3 The respondent submits that the complainant from the start of his employment used a small store room, R09 to store his caretaker materials. It is submitted that the complainant did not discuss with the respondent where he stored his insulin or where he checked his blood sugar levels. It is submitted that R09 is not a private room and that staff have access to it. The respondent further submits that this room had no key.
4.4 The Respondent submits that in Autumn 2008 the school purchased 110 chairs to use during school events and that it was necessary to store them in R09 and R08 adjoining to the school hall. It is submitted that the complainant agreed to this when it was proposed by the Principal. As the complainants caretaker materials were being moved from R09 to R46, it is submitted, that he asked the principal where he could store his insulin and was offered the staff room, the fridge in the staff room and finally a locked box to be stored on the top shelf in R46. The complainant asked for a key to R46 and the Respondent replied that this was not necessary as a bolt locked the door on the outside. It is submitted that the complainant refused to accept that R46 was suitable for his needs. The Respondent submits that following this refusal the Respondent wrote to the complainant on 20th April requesting information from his consultant to ascertain the following
where the insulin should be stored
how often he needs to take insulin during the school day
the facilities required for taking same
4.5 The complainant replied to this letter himself and again on 28th April and 7th May, letters were sent to the complainant by the respondent seeking confirmation of his requirements from his consultant. In May 2009, it is submitted that the complainant absented himself from work on grounds of stress/aggravated diabetes. It is further submitted by the respondent that the complainant had access to a nearby bathroom to inject himself. The complainants consultant replied on 19th September, 2009 and indicated that the complainant is recommended to inject insulin 4 times a day and that he requires a suitable area away from students with an appropriate degree of privacy in which to do this. The respondent submits that its offer of room R46 and/or the male staff toilets are suitable in this regard as the insulin could be stored in locked box on a shelf over 6 feet high and the male bathroom has 2 private cubicles and a sink with hot water and disposable towels. The respondent also submits that it is the claimants responsibility as caretaker to ensure that the bathrooms are hygienic.
The respondent accepts it has an obligation to provide reasonable accommodation for the complainant in the workplace and further that it carried out a proper assessment of the complainants needs by referring the matter to his consultant.
4.6 The respondent denies the claim that the referral of the complainant for a psychiatric evaluation is an act of victimisation resulting from his complaint of discrimination. The respondent submits that it has been alleged by the claimant that he has suffered stress as a result of the actions of the Principal and the Board of Management. The complainant has indicated that stress is a reason for his extensive sick leave. The Respondent submits that given the fact that the complainant has been on extensive sick leave due to stress and anxiety alleged to have been caused by his work relationship with the Principal and Board of Management it felt that it is appropriate that the complainant be assessed by a psychiatrist prior to his return to work.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me is now whether or not the respondent discriminated against the complainant on grounds of disability, in terms of section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008 in relation to his conditions of employment and whether or not, the respondent failed to provide the complainant with reasonable accommodation within the meaning of section 16 of the Acts. Furthermore, I must also consider whether the complainant was victimised contrary to section 74(2) of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of both parties at the Hearing. The most recent information in this matter was received by the Tribunal on 12th November 2010.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.
The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
5.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows - "as between any 2 persons, ... that one is a person with a disability and the other is not or is a person with a different disability".
5.4 Disability Ground
In the present case, it is accepted by both parties that the complainant is a diabetic and is a person with a disability within the meaning of section 2 of the Employment Equality Acts. In addition, the complainant has submitted a letter from his consultant detailing his condition and the treatment which the complainant requires on an ongoing basis in order to manage his condition. I am therefore satisfied that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts.
5.5 Discriminatory Treatment
5.5.1 The complainant at the hearing indicated that he was required by the Principal to provide evidence of medical appointments and proof of attendance at these appointments. The complainant submits that he was the only employee required to provide such evidence of appointments and that this is due to his disability. On the day of the hearing witness for the respondent Mr. A indicated that the school policy in relation to medical appointments was that staff members would inform the Principal of such appointments but did not have to provide any evidence of same. On the day of the hearing the Principal indicated that she did in fact request that the complainant provide evidence of medical appointments as she had trouble keeping track of the complainants appointments as he had numerous appointments during working hours compared to other staff members . The Principal did however state that she did not request proof of attendance at these appointments as she only required details of the appointment times and dates. The Principal also confirmed that this policy was later applied to all staff after the complainant wrote to the Board in November 2008 suggesting that this treatment of him was discriminatory.
5.5.2 The complainant himself advised the hearing that he was required to attend medical appointments specifically eye appointments on a monthly basis. The complainant also stated that these appointments and the aftermath of the treatment received at the appointments does take most of the day. As the complainant has indicated that he had these specific appointments on a monthly basis (outside of any other appointments) and as it is indicated that these took up a lot of time it is not unreasonable that the Principal would request details of such appointments in advance and indeed, it is common practice that employers request evidence of medical appointments, in the form of appointment cards, from employees. Based on the totality of the evidence given in this matter, I am satisfied that, the respondent did not discriminate against the complainant regarding the policy applied regarding his attendance at medical appointments.
5.6 Reasonable accommodation
5.6.1 The next matter I have to consider is whether the respondent provided the complainant with reasonable accommodation in accordance with the Acts. The complainant disputes that he was provided with reasonable accommodation. Section 16 of the Acts provides:
(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 --
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate
burden on the employer.
(c) In determining whether the measures would impose such
a burden account shall be taken, in particular, of --
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer's
business, and
(iii) the possibility of obtaining public funding or other
assistance.
(4) In subsection (3) --
''appropriate measures'' in relation to a person with a disability --
(a) means effective and practical measures, where needed in a
particular case, to adapt the employer's place of business
to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes
the adaptation of premises and equipment, patterns of
working time, distribution of tasks or the provision of
training or integration resources, but
(c) does not include any treatment, facility or thing that the person
might ordinarily or reasonably provide for herself or
herself;"
5.6.2. In the instant case it is useful to consider the Labour Courts comments in the case of 'A Health and Fitness Club Vs A Worker' which examines what is required of an employer in terms of providing reasonable accommodation. It recommends that the following 2 stage process be undertaken
"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."
Although the present case does not concern discriminatory dismissal, the above test can still be applied.
5.6.3. On the day of the hearing the complainant indicated that he had advised the respondent at interview stage that he was an insulin dependant diabetic. The respondent acknowledges that it was made fully aware of the complainant's condition prior to his commencement of employment. The complainant at the hearing also indicated that he did not at the commencement of his employment request any special measures to be put in place in order to facilitate him in managing his condition. The respondent agreed that this was in fact the case. However, the complainant indicated that on his first day at work he was provided with a room, "the caretakers room" which he used for storing his caretaker's materials as well as his diabetic kit and for performing his insulin injections.
5.6.4 The complainant at the hearing indicated that this room R09 contained a steel cabinet in which he stored his diabetic kit, he stated that this cabinet could be locked and that he and the Principal had a key to it. The complainant also stated that this room R09 had a lock on the door and that he had a key to this door and could thus, use the room as a facility for administering his insulin injections as it could be locked from the inside. The complainant indicated that it was necessary to inject his insulin in a private place as, he has to inject into his thigh and so, needs to partially remove his trousers to administer the injections. The Principal at the hearing agreed that there was a steel cabinet in the room to which the complainant had a key. The respondent in its submission indicated that the room R09 could not be locked and at the hearing, the Principal, in direct evidence, stated that, room R09 did not even have a handle but had to be opened using a scissors or a knife. The complainant agreed that the room door did not have a handle but stated that it could still be locked. The Principal in reply to direct questioning at the hearing admitted that, the complainant may have had a key to room R09, without her knowledge, as the caretaker would have access to keys and may have given himself a key to the room. I am thus satisfied that the complainant may have had a key to room R09 and that it could be locked despite not having a handle.
5.6.5 The complainant, in direct evidence, indicated that the respondent was aware that he used this room to store and inject his insulin. The Principal at the hearing stated that she was aware that the complainant needed to store his insulin in the room but was not aware that he used the room to administer his insulin injections. I am satisfied based on the evidence adduced by both sides that the respondent was aware that, the complainant used this room to store his insulin though may not have been aware that he administered his injections in this room.
5.6.6 The complainant, at the hearing, accepted that in January 2009, he was advised by the respondent that room R09 was needed for another purpose and that he would be provided with an alternative caretakers room. The complainant further indicated that he had no problem with this as he assumed that he was going to be provided with a suitable alternative. The complainant at the hearing indicated that on 6th March 2009, he was asked to clear room R09 and was then offered room R46 as an alternative caretakers room. The complainant indicated that, he was offered a petty cash box with a key within which to store his diabetic kit. The complainant stated that he asked for a key to room R46 but that the Principal refused to give him a key to this room. The complainant in response to direct questioning indicated that the alternative facilities offered (R46) would have been sufficient if, he had been allowed a key to the room. I am thus satisfied that the offer of a locked box within which to store his diabetic kit was acceptable to the complainant for storing his insulin. The Principal at the hearing accepted that she had refused to provide the complainant with a key to this room R46. The Principal advised that the reason for refusing to provide a key was for Health and Safety concerns, in case the complainant collapsed in the room while it was locked and no one would be able to access the room. The complainant indicated that without a key, this room was not a suitable alternative as it did not provide him with the necessary privacy to administer his insulin injections. The complainant, at the hearing, indicated that he advised the Principal that this room was not suitable for these reasons and he indicated that her response was that he could inject himself in the toilets. The complaint advised that using the toilets to check his blood sugar levels and to inject insulin was not acceptable to him due to hygiene concerns.
5.6.7 The complainant stated that as a result of not having proper facilities, within which to inject himself, he then tried to do without his insulin injections while at work but that this led to his blood sugars becoming erratic and so, he went out on sick leave due to stress and anxiety caused by uncontrolled blood sugar levels. The complainant indicated that he submitted medical certificates to the respondent to this effect during the period of his sick absence.
5.6.8 In applying the Labour Court ruling in 'A Health and Fitness Club Vs A Worker' referenced above, the respondent when faced with a situation where an employee suffering from diabetes advised them that facilities were not suitable for the management of his condition, made appropriate enquiries by seeking the advice of the complainants consultant regarding the complainants condition and the facilities required for managing his condition.
5.6.9 I note that the respondent, in April 2009, requested a letter from the complainant's consultant regarding the facilities the complainant required for storing and administering insulin. The complainant himself replied to this letter in May 2009 and this was followed by a letter from his consultant in September 2009. I note that the respondent, received confirmation from the complainant's consultant, in September 2009, that special facilities were required, specifically "a suitable storage area... to store his insulin and associated equipment..." the letter went on to state that, while conditions for the storage of insulin are not particularly stringent "the insulin should not be exposed to extremes of heat such as if locked in his (the complainant's) car or extremes of cold such as in a freezer." It would appear that the facilities offered by the respondent that is, a locked box for the storage of his diabetic kit which could be stored on a shelf over 6ft high in room R46 or in the staff room fridge met the requirements for the storage of the complainants insulin.
5.6.10 As regards the facilities required for the administration of insulin injections and the checking of blood sugars the complainant's consultant indicated that
"a suitable area, away from students, with an appropriate degree of privacy" was required to facilitate the injecting of insulin. In response to this, the respondent has stated that, it offered the complainant a cubicle in the male staff toilets which could be used for the administration of insulin injections and the checking of blood sugars. Although the complainant has indicated his dissatisfaction at the use of a toilet for administering injections I am satisfied that the respondent has in the present circumstances met its obligation to provide reasonable accommodation in accordance with the facilities outlined by the complainant's consultant.
5.6.11 I note that the complainant did not at first request that any special facilities be put in place but, I also note, that when the complainant indicated that facilities were no longer adequate the respondent at this point, made necessary enquiries by seeking the advice of the complainants consultant regarding what facilities the complainant required, in order to manage his condition. The respondent then offered facilities which met the requirements as specified by the complainant's consultant.
5.6.12 I am thus satisfied, based on the totality of the evidence provided on this issue, that the respondent did provide facilities, as specified in the consultants letter and so provided the complainant with reasonable accommodation. Accordingly the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(h) of the Acts in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts
5.7 Victimisation -First alleged act
5.7.1 The next matter for consideration is victimisation. Section 74(2) provides that:
(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.
5.7.2 The complainant has submitted that the actions of the respondent in taking away room R09 amounts to victimisation. The complainant submits, that this was a punitive measure and a reaction to his claim of discriminatory treatment contained in a letter to the BOM in November 2008. The Respondent, at the hearing indicated that room R09 and the room beside it R08 were needed to store 115 chairs which the school had recently acquired for events. The respondent indicated that these rooms had to be used as they were adjacent to the school hall (evidence in the form of a map of the school was submitted) where the chairs would be used. Each of the witnesses for the respondent corroborated this evidence that the room was required for the storage of chairs and the evidence presented indicated that this room is in fact adjacent to the hall. The complainant himself made no objection to the fact that this room was required for this purpose, on the understanding that, he would be provided with a suitable alternative. I am thus satisfied that room R09 was required for another purpose and that its redesignation from the caretakers room was in no way related to the complainants claim of discrimination.
5.8 Victimisation - Second alleged Act
The respondent at the hearing objected to the hearing of this 2nd claim of victimisation and submissions were received from both parties on the matter however I have decided to consider it.
5.8.1 The complainant submits that the actions of the respondent in referring him for a psychiatric evaluation amount to victimisation. The complainant at the hearing indicated that, in late November 2009, he received a letter from the respondent asking when he would be returning to work. The complainant advised that in response to this he submitted a final medical cert up to 6th of January 2010 indicating that he would be fit to return to work on 7th of January 2010. This cert was issued by the same GP who had supplied the medical certificates for the sick absence period.
5.8.2 The complainant advised the hearing that following this he received a letter from the respondent requesting him to attend with a psychiatrist Dr. O in order that he could certify whether or not the complainant was fit to return to work. The complainant agreed to attend this on the basis that he would be provided with all background notes provided to Dr. O . The complainant questioned the need for Dr. O's assessment and indicated that he was then asked to agree to waiver his confidentiality rights in relation to Dr. O's report and on foot of this he refused to attend with Dr. O. The complainant submits that the referral to a psychiatrist was a reaction to his complaint of discrimination and thus constitutes victimisation.
5.8.3 The respondent at the hearing indicated that the referral for a psychiatric evaluation was due to the fact that the complainant has been out on sick leave which had been attributed to stress and anxiety as well as uncontrolled diabetes. The Principal, in direct evidence indicated that, the respondent felt it was their duty to investigate the underlying reason for the complainants extensive sick leave. In addition to this, witness for the respondent Mr. C indicated that referral to a psychiatrist was necessary as the reason for the complainants sick absence was still present (referring to his relationship with the Principal).
5.8.4 In considering the respondent's reasoning for referring the complainant to a psychiatrist I should state that it is not for me to decide whether it was appropriate for the respondent to refer the complainant for a psychiatric evaluation. In considering the respondent's reason for this referral I must take into account the fact that, the complainant had been absent from work on sick leave for an extensive period (8 months) since May 2009 and that, the reason given on the medical certificates for this absence was stress, anxiety/uncontrolled diabetes. In addition to this, the complainant, in correspondence to the Board of Management and to the Department of Education, attributed this stress and anxiety to the actions of the Principal and the Board of Management. The background material submitted by the respondent to Dr. O indicated that the complainant had previously incurred additional sick leave of 14 weeks during the period 2008/2009. It also became evident during the course of my investigation that the complainant had an ongoing difficult relationship with the Principal and the Board of Management, which came to light in submissions made by the complainant, and that these difficulties had been ongoing prior to this complaint and the issue of reasonable accommodation. In light of this, and the foregoing evidence on this matter, I am satisfied, based on the totality of the evidence provided on this issue, that the respondent's decision to refer the complainant for a psychiatric evaluation prior to his return to work was in no way related to the complainant's claim of discrimination.
6. Decision
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
the respondent did not discriminate against the complainant on the disability, grounds pursuant to section 6 of the Acts in terms of his conditions of employment and contrary to section 8 of the Acts;
(ii) the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(h) of the Acts in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts.
(iii) the respondent did not victimise the complainant on the disability ground in terms of section 74 of the Acts.
______________________
Orla Jones
Equality Officer
31 January, 2011