The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-221
PARTIES
A Complainant
(Represented by Gallagher & Brennan, Solicitors)
- V -
A Training Centre
(Represented by Brian Gageby, B.L.
instructed by William Fry, Solicitor)
File reference: EE/2008/611
Date of issue: 30 November 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Harassment - Victimisation - Disability - Prima Facie Case
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment and harassment on grounds of disability in terms of sections 6(2) & 14A of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of the Acts and that he was subjected to victimisation in terms of section 74 of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 10 September 2008 under the Acts. On 6 May 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 in advance of the hearing. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 11 November 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 commenced a training course in October 2007. The complainant also submitted that he is permanently disabled and is in receipt of an Invalidity Pension.
2.2 The complainant submitted that during the course, he had to go into hospital for an operation and that when he returned to the course after five days absence he was told that he would not be allowed back on the course.
2.3 The complainant submitted that he could not return to the course for approximately one month and that when he did return to the course, he was harassed by the course director and that he was bullied in front of the class.
2.4 The complainant submitted that the arrangements for the course are not set up to deal with a person with a disability such as the complainant's and that he was not allowed to finish the course.
2.5 The complainant submitted that his main grievance was that his training allowance was stopped due to the fact that he was not there.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent acknowledged that due to an administrative error, the complainant was given incorrect factual information with regard to the policy on certified sick leave in June 2008. The respondent further accepted that payments due to the complainant were incorrectly withheld in May 2008 and the respondent submitted that the error was acknowledged and rectified by the respondent as soon as reasonably possible
3.2 The respondent submitted that it has in place a comprehensive and up-to-date Equality Policy which has been applied.
3.3 The respondent has made all reasonable accommodations for the respondent.
3.4 The respondent denies all allegations of bullying, harassment or victimisation and submitted that they are without merit.
3.5 The respondent submitted that the complainant has failed to establish a prima facie case of discrimination and that his complaint should not be upheld.
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, harassment or victimisation by the respondent on the grounds of disability in terms of sections 6(2), 14 & 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 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 Having regard to the foregoing paragraph, and considering the testimony and documentation put forward by both parties prior to and at the hearing, I am satisfied that the following facts have been established in relation to the alleged discriminatory treatment:
The complainant's disability comes within the definition contained in the Acts (which was accepted by the respondent)
The complainant was out on sick leave for fifteen days
The respondent usually allows for 20 days certified sick leave for persons with a registered disability before halting their training allowance. All other persons are allowed 6 days certified sick leave
An error was made in this case and the complainant was not allowed the 20 days but was considered under the 6 day certified sick leave allowance given to persons without a disability
The complainant's training allowance was stopped when he accumulated in excess of 6 certified sick days
This position was brought to the notice of the respondent who acknowledged their error and rectified the mistake, paying the incorrectly withheld amount within three weeks
4.5 Having regard to the facts established at the hearing, I am satisfied that the complainant has not established that he was treated in a less favourable manner than someone who did not have a disability. In fact, he was treated in a similar fashion to a person without a disability. While the Acts allow for a respondent to provide more favourable treatment to individuals or groups on a proactive basis, they do not impose any obligation to do so. Accordingly, discrimination may not be inferred for these actions in this instance. As the complainant has not established a prima facie case, this element of the complaint fails.
Harassment
4.6 The complainant made written submissions to the Tribunal prior to the hearing indicating that an incident of harassment took place in early June 2008. At the hearing, the complainant stated that on 3 June 2008, the Course Director marched over, physically pinned him down in his seat using both hands and raised his voice, in front of other classmates, and then when the confrontation moved to another room, refused to deal with the issue (of the requisite number of certified sick days allowed). The complainant stated that he felt threatened by him and that he had humiliated him in front of the whole class.
4.6 The Course Director gave evidence at the hearing which substantially differed from the complainant's version of events. This evidence was given in a clear, concise manner, and remained credible despite robust cross-examination. In addition to the foregoing, the respondent submitted written evidence in support of the Course Director's account of events in the form of an almost-contemporaneous account of the incident, written by the complainant within a week of the incident, and submitted to the respondent through its grievance procedure. This document does not entirely support the complainant's account of the incident nor the respondents account.
4.7 Following the incident the complainant made a complaint to the respondent through its grievance procedure and returned to complete the course for the next few weeks.
4.8 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.
4.9 Having considered the testimony given at the hearing by the complainant and the Course Director, on balance, I prefer the latter version of events as given by the Course Director. Accordingly, I am not satisfied that the complainant has established, in the first instance, facts from which harassment may be inferred. Given that no prima facie case has been established, this element of the complaint also fails.
Victimisation
4.10 The Equality Officer gave extracts of the Acts relating to the issue of victimisation to both parties at the hearing and explained the concept as it pertains to the Employment Equality Acts. When the complainant's representative was asked where was the evidence of victimisation, he responded "nowhere". Accordingly, I do not consider that any credible arguments have been advanced in support of the claim of victimisation. Therefore, this element of the complaint fails as no facts have been established, 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 disability ground 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 harassment on the basis of the disability ground 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 victimisation on the basis of the disability ground has not been established and this element of the complaint fails.
Conor Stokes
Equality Officer
30 November 2011