The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-146
PARTIES
A Complainant
- V -
A Community Development Project
File reference: EE/2008/410
Date of issue: 25 July 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Harassment - Victimisatory Dismissal - Marital Status - 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 and victimisatory dismissal by the respondent on the grounds of marital status and disability in terms of section 6(2) and 14A 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 25 June 2008 under the Acts. On 14 September 2010, 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 in advance of the hearing. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 9 February 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 was employed as artist-in-residence with the respondents from June 2007 until June 2008 and that he was discriminated against by the respondent on the grounds of disability and marital status when he was dismissed. The complainant submitted that the respondent unreasonably withheld payment from him and that they failed in their duty regarding reasonable accommodation of his specific learning difficulties. The complainant further submitted that the circumstances surrounding his dismissal also amounted to victimisation.
2.2 The complainant submitted that at the time of his interview for the position on the Community Employment Scheme, he was not told anything about having to write reports, and that following the start of his employment, he was not given a formal induction into the workplace.
2.3 The complainant submitted that deductions were made from his wages, without notification, which contravenes the Payment of Wages Act 1991. The complainant submitted that he was brought into the supervisors office for 'little chats' and that there would be one or two other people present and that two or three to one bullying amounts to victimisation and harassment. The complainant submitted information relating to his being present or absent from the workplace on various occasions, in support of his contention regarding the payment of wages issues. He also submitted that his supervisor accused him of being aggressive when he was simply being assertive in relation to his rights. He further submitted that some of the victimisation was a result of him questioning the deductions from his wages.
2.4 The complainant submitted that he was specific learning difficulties including Dyslexia, Dyspraxia and Irlan Syndrome and that he explained this to his supervisor and to the Centre manager, indicating that it takes him longer to do written work and that he needs adequate time to prepare. He also submitted that he had detailed diagnoses and recommendations from both Ireland and the UK. He submitted that when he sought help with writing reports, none was forthcoming.
2.5 The complainant submitted that on two occasions he was paid by cheque and that this had impacted adversely on him due to his family circumstances, in that he would have to bring two young children to the bank with him in order to cash cheques.
2.6 The complainant submitted detailed information as to the ongoing nature of the employment relationship, the work environment and the impact that this had upon himself and his family life.
2.7 The complainant submitted that his contract was not renewed for a second year.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent refutes the accusations of discrimination and submitted that the complainant was employed as a youth worker on community employment with a one year contract and not as an artist-in-residence.
3.2 The respondent submitted that if a particular project thinks that it is in the interest of the individual and the project, funding/authorization for a second year may be sought, but this is not always guaranteed.
3.3 The respondent submitted that there were several meetings with the complainant in April/May 2008 and that these meetings were attended by both the supervisor and the coordinator. Usually the coordinator only becomes involved when difficult situations arise. In this case a difficult situation had arisen in that the complainant was uncooperative and aggressive, and two of the respondent's staff had to be present when dealing with the complainant. Accordingly, the supervisor and coordinator met with the complainant on several occasions in April and May 2008 to plan out an application for a new project for the complainant to provide an additional year's employment. The complainant was asked for a report on the work completed to date to assist in compiling this application.
3.4 The respondent submitted that it was only informed of the complainant's learning difficulties on 17 April 2008 and pointed out that if it had known this at an earlier stage it might not have put the complainant forward for a teacher training course. Additionally, the respondent submitted that it is not aware of any request on the part of the complainant seeking assistance in relation to his course work for the training course which they part sponsor for him. The respondent also submitted that the mediator in the Local Employment Service was similarly unaware of his learning difficulties.
3.5 The respondent submitted that the meetings in April and May of 2008 were arranged to assist the complainant in writing up a report in support of his request for an extension of one year to his contract. Ultimately, no report was received in time from the complainant and an application in support of the complainant's retention was accompanied by a report written by his supervisor.
3.6 The respondent submitted that the complainant was paid by cheque on three occasions, 6 December 2007, 14 May 2008 and his final payment. The first two instances occurred when the phonelines were down and all staff had to be paid in this fashion, so that the complainant was not treated any differently to any other staff member. The final instance related to the complainant's final payment and occurred where the complainant had not signed in on a daily basis as required and could not be found on the premises. It was submitted that in difficult situations such as this one, the wages are processed as normal, but a cheque is issued to be collected. At such time, explanations are required as to the persons whereabouts during the week.
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 and victimisatory dismissal by the respondent on the grounds of marital status and disability in terms of section 6(2) and 14A 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 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
Discriminatory Treatment
4.4. It is not my role to determine whether any breaches of the Payment of Wages Acts has taken place, on occasion however, the case may be made out that any such breaches are based on one of the nine protected grounds. In such cases, my role is to consider whether any of the nine protected grounds have played a part in the decision to withhold or deduct monies due to a complainant. In the instant case, I am not satisfied that the complainant has established primary facts to indicate that any of the treatment accorded to him in relation to deductions from wages or the manner in which those wages were paid out to him resulted in him being treated in a less favourable manner in relation to any of his colleagues or that the treatment can be linked to one of the nine protected grounds.
Appropriate Measures/Reasonable Accommodation
4.5 In the recent case of Bus Eireann and Mr C (EDA0811), the Labour Court considered the issue of disability and reasonable accommodation. In its decision, it stated that the Law is as follows:
"Reasonable Accommodation
Section 16 of the Act provides, in effect, that an employer is not obliged to retain a person in a position with a disability unless that person is fully capable of performing the duties of the position at issue. The Section goes on to provide that a person with a disability is to be presumed to be fully capable of discharging their duties if by the employer making some reasonable accommodation, they can continue in their employment.
The nature and extent of an employer's duty to an employee with a disability was recently considered by this Court in Determination EDA0413 - An Employer and A Worker, issued on 15th November, 2004. In relation to the effect of section 16, the Court stated as follows:
"Prima facie, subsection (1)(b) of this section allows an employer to treat a person with a disability less favourably than others. An applicant for employment who has a disability may be turned down if they are not fully capable of carrying out all the duties attached to the job for which they applied. An applicant for promotion or for training may likewise be rejected on the same grounds. If an existing employee, by reason of disability, is no longer fully able to do the job for which he or she was employed they can lawfully be dismissed for lack of capacity. Moreover, in certain circumstances, the contract of employment may come to an end by operation of law due to frustration."
"Subsection 1(b) is, however, qualified by subsection (3). This subsection provides that a person with a disability is to be regarded as fully capable and fully competent to undertake the duties of a post if with the benefit of special treatment they would be fully capable and fully competent to do so. The subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them."
"The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person's attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (see British Gas Services Ltd v McCaull [2001] IRLR 60)"
The Court adopts that reasoning in its approach to the instant case"
4.6 In relation to the provision of reasonable accommodation, the evidence given by both parties indicates that the complainant informed the respondent of his disability in or around 17 April, 2008 and that as a result of this and further to the complainant's request for assistance, the respondent met with the complainant on a number of occasions to discuss what information he should give in support of an application to extend his placement period, and to provide additional guidance to the complainant. Much of the information sought was available to the complainant as part of the coursework for his teacher-training course which was part-funded by the respondent. The respondent submitted that the complainant had not sought assistance in relation to the undertaking of coursework or assignments on his training course, and it was in these circumstances that it presumed that the additional meetings and guidance were sufficient to enable the complainant to complete the required report. The complainant did not seek specific assistance from the respondent and when questioned by the Equality Officer was unclear as to what additional assistance he was seeking or could have been provided with. I also note that the complainant advised the respondent of his disability, but did not provide the supporting diagnostic reports, which were in his possession at that time, to the respondent. The complainant did not provide any report to the respondent in support of an application to continue to provide employment for an additional year. Nonetheless, the respondent made an application to have the complainant's employment extended for another year and this application was accompanied by reports drawn up by the respondent in support of the complainant. This application was unsuccessful.
4.7 In the circumstances of this case, the complainant did not inform the complainant of the existence of his disability for the first 9 months of his employment and once he did inform them, did not provide the information in his possession on the nature and extent of his disability. The complainant had not sought reasonable accommodation measures prior to this and did not indicate to the respondent what measures he was seeking or what would be appropriate. In these circumstances, the respondent suggested that it was reasonable for it to conclude that it had accommodated the complainant.
4.8 I consider that where a person with a disability seeks appropriate measures/reasonable accommodation measures, there is an onus on that person to inform the employer of the existence of their disability and given that appropriate measures required will differ from person to person, to provide the employer with any information or guidance in their possession that would facilitate the provision of those measures. In the instant case, I am satisfied that the respondent provided appropriate measures to the complainant and has therefore fulfilled its duty in this regard.
Dismissal
4.9 Having considered all the evidence before the Tribunal in addition to the foregoing, I am not satisfied that the evidence given by the complainant supports his contention that he suffered dismissal, rather that his one year contract came to its natural end. Accordingly, The complainant has not established any facts to support his contention that he was dismissed and this element of the complaint fails.
Harassment
4.10 The complainant also claims that he was subjected to harassment. Section 14A (7) (a) of the Acts, inter alia, defines harassment as
"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.
4.11 Having considered the evidence provided and the working environment in which the respondent operated, I am not satisfied that the complainant has, on balance, linked any of the treatment he received to either his marital status or to his disability. While the complainant may not have appreciated having to meet with two people at each of his meetings with the respondent, I am satisfied that the respondent was acting in a responsible manner, given the circumstances of the employment relationship. Accordingly, I cannot find for the complainant in this regard.
Victimisation
4.12 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.
4.13 The complainant has not given any evidence to support his contention that he was treated adversely as a reaction to any of the situations mentioned in the legislation. Accordingly, I find that the complainant has not established facts from which victimisation or victimisatory dismissal may be inferred.
4.14 The evidence provided by both parties indicates a gradual breakdown in what appears to have been an uneasy employment relationship, this was marked by difficulties on both sides throughout the period of employment. Having considered the evidence at length, I am satisfied that the complainant has not established facts in the first instance, from which discrimination may be inferred.
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 marital status or disability grounds has not been established and this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of the marital status or disability grounds has not been established and this element of the 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 marital status or disability grounds has not been established and this element of the 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 marital status or disability grounds has not been established and this element of the complaint fails.
Conor Stokes
Equality Officer
25 July 2011