Equality Officer's Decision No: DEC-E/2011/195
Parties
An Employee
(Represented by Mary Honan BL Instructed by
O'Mara Geraghty McCourt - Solicitors)
And
A Broadcasting Company
(Represented by A&L Goodbody - Solicitors)
File No: EE/2008/359
Date of issue: 14 October, 2011
Headnotes: Employment Equality Acts 1998- 2007 - sections 6,8,16 & 74- disability - equal treatment - conditions of employment - reasonable accommodation - victimisation
1. DISPUTE
This dispute involves a claim by Ms. A ("the complainant") that she was 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 her conditions of employment. The complainant also asserts that the respondent failed to provide her with reasonable accommodation to take account of her disability in accordance with section 16 of the Employment Equality Acts, 1998-2007 and that she was victimised by the respondent in terms of section 74(2) of those Acts. The respondent rejects the complainant's allegations in their entirety.
2. BACKGROUND
2.1 The complainant has been employed by the respondent since 1988. She contends that during this period she has held the position of Producer in Charge for the last ten years and was also responsible for a wide portfolio of significant programmes such as General Elections, Local and European Elections as well as Political Party Conferences. The complainant states that she has suffered from back, shoulder and neck problems for the past twenty years which were exacerbated by a serious bike accident in 2006. Following this accident the complainant was unable to attend work for six weeks and returned to work under flexible working arrangements with the agreement of her then Line Manager. She asserts that in September, 2006 the respondent's Head of Radio (Ms. X) assigned her to duties which she believed were unsuitable for her given the nature of her disability, although ultimately this move did not take place. The complainant further asserts that a similar attempt was made to reassign her to equally unsuitable duties the following August with a similar outcome. She states that in April, 2008 the Head of Radio met with her and in the course of this meeting denied that the complainant ever held the role of Producer in Charge of Special Events - or indeed that such a position ever existed. The complainant submits that this alleged treatment constitutes discrimination of her on grounds of disability contrary to the Employment Equality Acts, 1998-2007 and that the respondent failed to afford her reasonable accommodation in terms of section 16 of those Acts. The complainant also asserts that the respondent victimised her contrary to section 74(2) of the Acts. The respondent rejects the complainant's assertions in their entirety and notwithstanding this submits that the alleged treatment of the complainant in 2006 and 2007 is not properly before the Tribunal.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 5 June, 2008. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of complaint commenced on 14 September, 2010 -the date the complaint was delegated to me. Submissions were received from both parties and Hearings on the complaint took place on 15 December, 2010 and 26 January, 2011. A small number of points arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties until late April, 2011. In the course of the Hearing Counsel for the complainant requested that the identities of the parties to the complaint be anonymised and the respondent's legal representative had no objection to same. In the circumstances, I have decided to accede to the complainant's request.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that she commenced employment with the respondent in 1988 and was first assigned the position of Producer in Charge in April, 1998 on Programme Number 1 (details supplied). She adds that she was (i) also responsible for a wide portfolio of significant programmes such as General Elections, Local and European Elections as well as Political Party Conferences and (ii) a member of the respondent's Steering Group which monitors all of the Respondent's election output and oversees its coverage of major political events. The complainant states that she has suffered from back, shoulder and neck problems for the past twenty years which were exacerbated by a bike accident in Spring 2006. She states that following this accident she was certified as unfit for work for approximately six weeks and returned to work with the agreement of her then Line Manager (Mr. Y) that there would be flexibility around her work pattern. She adds that the programme she was assigned to at the time (Programme 2) was a weekly one which enabled her to pace herself and keep her sick leave to a minimum. She also availed of a term-time arrangement which meant she did not attend work during the Summer months and was able to recuperate. The complainant states that she subsequently diagnosed as suffering a prolapsed disc and informed her employer of this in writing in early October, 2006. The complainant submits that this constitutes a disability within the meaning of section 2 of the Employment Equality Acts, 1998-2007.
3.2 The complainant states in late August, 2006 she learned from a colleague that the respondent's Head of Radio (Ms. X) had assigned her, without any consultation, to another programme (Programme Number 3). She adds that this assignment was a live daily broadcast which would necessitate longer hours in the studio on a minimum of three out of every ten days in a highly pressurised environment, involving continuous phone, computer and talkback commitments, as well as the preparation of briefs etc. when not in studio. The complainant states that this was in contrast to her existing assignment (Programme 2) which was a weekly, hour long, live panel programme dealing with pre-scheduled issues. The complainant states that she expressed her concern at the proposed assignment to the respondent's Director of Radio (Mr. C - who was Ms. X's Line Manager) who in turn referred her to the respondent's Head of HR (Mr. D). The complainant states that at this time the respondent was not aware of her prolapsed disc but was on notice that her previous absence was due to chronic back problems. The complainant adds that Mr. D referred her to Dr. Z - the respondent's medical advisor - whom she met on 6 September, 2006. The complainant states that Dr. Z recommended certain restrictions on the complainant's duties and subsequently her proposed assignment to Programme 3 did not take place - although she was never advised of the reasons for same. The complainant submits that the alleged treatment of her constitutes discrimination of her contrary to the Acts.
3.3 The complainant states that in August, 2007 the respondent's Editor of Daily Programmes (Mr. B - the complainant's then Line Manager) proposed that the complainant work two days a week on Programme 3 in addition to her work on Programme 2 and the other duties she had in respect of Special Events. She adds that she was surprised and disappointed at this given the respondent was fully aware from the previous year that she had expressed the view that an assignment to Programme 3 was not suitable for her given her condition. The complainant states that she raised her concerns with Mr. B who informed her that Ms. X had decided the assignment would proceed. She adds that she requested to see Dr. Z again and did so on 12 September, 2007. The complainant states that Dr. Z (i) confirmed that she (the complainant) was fit to carry out the duties she had performed before her term-time had commenced - June, 2007, (ii) stated that any additional role in respect of Programme 3 would place an unduly onerous burden on the complainant and (iii) requested that she be consulted before any change was made to the complainant's work schedule. The complainant states that once again the proposed change to her role did not take place and submits that the alleged treatment of her constitutes discrimination of her contrary to the Acts. She adds that she had never been assigned a role at any time previously in her career with the respondent without some form of discussion or consultation in advance and she was not aware of any such assignment having ever been imposed. The complainant further states that prior to 2006 she had only been re-assigned on one previous occasion and this had occurred following discussion with her then Line Managers. She accepts the respondent's comment that it would be normal to rotate staff at Producer in Charge level on a regular basis but states that (i) this was the third time in two and a half years that the respondent had sought to move her and (ii) there were other Producers in Charge in posts which they had held for several years.
3.4 The complainant states that she met with Ms. X for the first time in a professional capacity on 28 April, 2008 - almost two years after the latter's appointment. The complainant adds that this was highly unusual as she had met with Ms. X's predecessor on a regular basis to discuss work related matters. The complainant states that she was aware from colleagues that Ms. X met regularly with them during this period - on average once a month. The complainant adds that in the course of this meeting Ms. X informed her that that she was not Producer in Charge of Special Events, adding that in her (Ms. X's) view no such position ever existed and that there was no written confirmation the complainant had such a role. The complainant states that she was astonished by these comments as she had been performing these latter functions for over seven years. The complainant further states that she e-mailed Ms. X on 9 May, 2008 expressing her concerns about her (Ms. X's) comments at the meeting, in particular her comment that she (Ms. X) would have "no discussion or negotiation" with the complainant on the matter - which the complainant considered marked "a major departure from precedent and custom and practice" in the respondent when moves within the organisation at her level were being considered. The complainant states she also sought confirmation that she would continue to be Producer in Charge of Special Events and a member of the respondent's Steering Group.
3.5 The complainant states that Ms. X responded on 19 May, 2008 acknowledging the complainant's contribution to the respondent's coverage of a range of political events over the years - adding that she (Ms. X) was not aware of any official confirmation of the role of Producer in Charge of Special Events and understood that the complainant's current assignment was Producer in Charge of Programme 2 and Árdfheiseanna. The complainant states that Ms. X went on to outline the changes which were being made to the staff assignment process, which may result in an assignment where she would not be working in a Producer in Charge capacity but in light of the agreement the respondent had with the relevant trade union, the complainant would retain her remuneration at Producer in Charge level. The complainant states that she responded to Ms. X on 21 May, 2008 reaffirming her assertion that she was Producer in Charge of Special Events and that it was explicitly and implicitly recognized within the respondent's Steering Group that she performed this role and had done so for the previous seven years. The complainant went on to say that appointment as Producer in Charge was clearly viewed within the organization as a promotion and that conversely, to lose such a role would be seen as a demotion by her colleagues. The complaint adds that she suggested the parties engage in a meaningful way to resolve the dispute between them but in the event that a satisfactory resolution could not be reached she would have no option but to invoke the respondent's grievance procedure. She concluded by reminding Ms. X she would be on term-time from the end of May and that if the matter could not be resolved by then she requested that no action on her assignment should be taken in her absence and could resume on her return to work in September. The complainant states that she was informed by Mr. B on 29 May, 2008 that she was assigned to Programme 4 on her return in September. The complainant states that this was also a live daily programme which required considerable periods in studio and was, in her opinion, unsuitable to her because of her disability - a point she had made the respondent aware of the previous year. She adds that the assignment was also only at the level of Producer. The complainant submits that the alleged treatment constitutes victimisation of her contrary to the Acts.
3.6 The complainant states that she wrote to Mr. C, the respondent's Managing Director of Radio on 30 May, 2008 invoking the respondent's Grievance Procedure against Ms. X's decision to remove her from her role as Producer in Charge of Special Events and her decision to assign her as Producer to Programme 4. The complainant states that the respondent's Head of HR (Mr. D) e-mailed her on 4 June, 2008 advising that the matter had been passed onto him and in light of her concerns about her assignment to Programme 4 he proposed that she meet with Dr. Z to review the matter and scheduled an appointment for her on 12 June, 2008. The complainant states that she was abroad at that time and was unable to keep the appointment and it was rescheduled for 23 July, 2008 following her return from annual leave. The complainant adds that during this appointment Dr. Z suggested the complainant meet with her Consultant - an appointment was arranged for 29 September, 2008 - and told the complainant that she would remain in her existing assignment pending this consultation. The complainant adds that she e-mailed Mr. D on 30 July, 2008 advising of same and seeking an assurance that she would not be reassigned pending the consultation. The complainant states that Mr. D was on annual leave and did not reply until 11 August, 2008 wherein he advised, inter alia, that he could give no such assurance. She adds that two days later Mr. D e-mailed her advising that he had received the medical report from Dr. Z (following the complainant's recent visit with her) and it made no reference to her work schedule in terms of her continuing to work in the assignment she had in June, 2008 - prior to her term-time. The complainant adds Mr. D also advised that the respondent had no medical evidence which would indicate a need to alter the assignment to Programme 4 which she was scheduled to take up on her return to work in September.
3.7 The complainant states that she e-mailed Mr. C on 14 August, 2008 expressing, inter alia, her concern about the content of Mr. D's previous e-mail, re-iterating her view that she was medically unfit for the proposed assignment to Programme 4 and requested a copy of Dr. Z's most recent medical report. She states that Mr. C replied by e-mail later that same day advising that she would receive a copy of the recent medical report and suggesting that she keep in touch with Mr. D about the proposed assignment to Programme 4. The complainant adds that she e-mailed Mr. D on 28 August, 2008 (i) again raising her concerns about the proposed assignment (ii) drawing his attention to Dr. Z's opinion of 12 September, 2007 that if the complainant's role was to change it would be necessary for her (Dr. Z) to re-evaluate her fitness for her new role, (iii) re-stating her view that no such consultation took place prior to the purported assignment and (iv) requesting that she remain in the assignment she had prior to the commencement of her term-time. The complainant states that Mr. D replied by e-mail dated 3 September, 2008 wherein he acknowledged that occasionally staff had (in the past) specifically requested certain assignments and if an individual was unhappy with his or her role, reviews could and did take place, although this did not mean that the original assignment would change. The complainant adds that Mr. D went on to say that he understood, from his own discussions with the Editorial Board, that once a schedule of assignments is put in place moving one person can have significant implications for the other assignments. She states that Mr. D also stated that he was not in a position to accede to her request that she remain assigned on Programme 2, that this was a decision for the Editorial Board and that he had previously put forward her case to remain on the programme but her request could not be accommodated. She adds that Mr. D concluded by saying that the Editorial Board was of the view that the proposed assignment to Programme 4 would not place any "additional burden" on her and he suggested she accept that the assignment would proceed. The complainant states that she was astonished and distressed by this e-mail and submits that it constitutes a further act of discrimination of her.
3.8 The complainant states that she e-mailed Mr. B on 9 September, 2008 again expressing her concerns about the proposed assignment. She adds that she drew his attention to a previous comment made by him that he did not consider it appropriate to proceed with her complaint under the Internal Grievance Procedure (which she had invoked on 30 May, 2008) until all the medical evidence was to hand. She further states that she advised that these medical assessments - which were to assess her capacity to perform the duties attached to the assignment to Programme 4 - were not complete and she was therefore at a loss to understand how the assignment could proceed in the interim. The complainant states that Mr. B replied by e-mail dated 11 September, 2008 wherein he stated that other staff had been re-assigned during the Summer and from an operational perspective, her request to remain on Programme 2 could not be accommodated. The complainant further states that at the respondent's request she met with Dr. Z on 10 September, 2008 to determine her capability to perform the duties attached to the assignment to Programme 4. She adds that Dr. Z was of the view that her previous assessment of the complainant of September, 2007 - that she was unable to perform the duties in respect of Programme 3 - was equally applicable to the current proposed assignment. The complainant adds that she believed Dr. Z would communicate her opinion to the respondent in this regard and in order to allow this to happen and the matter to be resolved she (the complainant) agreed with Dr. Z's proposal that she should remain off work on sick leave. The complainant states that Dr. Z informed her she had spoken with the respondent about this proposed course of action and that the resolution of the matter should take no longer than a week. The complainant states that she e-mailed Mr. D on 11 September, 2008 confirming her agreement to this short-term measure and re-iterating her position that she should remain assigned to Programme 2. The complainant adds that the respondent never suggested to her, at that time, that she would only be required to perform duties in the studio once a week should the assignment proceed - adding that she was of the view (given her extensive experience) that such an arrangement would not be practical given the requirement for team involvement in producing Programme 4.
3.9 The complainant states Mr. D replied to her on 15 September, 2008 advising that as Mr. C had been drawn directly into her complaint under the Internal Grievance Procedure it would be inappropriate for him (Mr. C) to be involved in the investigation of her grievance and that another Manager within the organisation would be appointed to deal with the matter. The complainant states that she replied by e-mail later that day agreeing with the proposal and suggesting that the appointee should have the relevant experience and seniority within the organisation. She adds that she also re-iterated the nature of her grievance as follows: (i) her proposed assignment to Programme 4, (ii) that this proposed assignment was at the level of Producer and not Producer in Charge and (iii) the issue of her role as Producer in Charge of Special Events which was disputed by Ms. X. The complainant states that as she heard nothing further from the respondent she e-mailed Mr. D on 15 October, 2008 detailing her concerns at the length of time it was taking to deal with the matter - given her understanding from Dr. Z that the issue could be resolved within a week - and expressing her frustration to be out of work in circumstances where she was fit to perform the duties she has previously done. The complainant adds that Mr. D replied by e-mail the next day assuring her that her situation had not been forgotten about and that after some difficulty he had found a Senior Manager with relevant experience (Mr. E) to deal with her grievance. She states Mr. D also informed her that the respondent was examining options as regards her assignment and that he would revert to her as soon as possible.
3.10 The complainant states she e-mailed Mr. D that same day asking a number of questions which she considered pertinent to the investigation of her grievance and sought a copy of any documentation on the process. She adds that he replied immediately setting out his understanding of the process and advising that there was no leaflet or guidelines on the process other than what was included in the respondent's Staff Handbook. The complainant states that she was somewhat perturbed that Mr. E was to conduct his investigation by speaking with Ms. X first and then her and she raised her concerns in this regard with Mr. D by e-mail dated 22 October, 2008. The complainant states that she met with Mr. E late that same day but given that he had already met with Ms. X, she (the complainant) felt she was defending her position rather than ventilating a grievance. She communicated her concerns to Mr. D in this regard by e-mail dated 25 October, 2008. The complainant states that Mr. E reported on 20 November, 2008. She adds that whilst he noted the non-permanent nature of Producer in Charge there were few examples of people losing that role. The complainant states Mr. E observed that the structure of assigning/appointing an employee as Producer in Charge "is almost designed to cause unhappiness among Producers as it gives them status and then takes it away". The complainant adds that the report also made a number of recommendations - some specifically related to her situation and others of a more general nature. The complainant states that she e-mailed Mr. D with her comments on the report on 28 November, 2008 and Mr. D replied on 9 December, 2008.
3.11 The complainant states that discussions about her return to work to a mutually acceptable assignment continued and she returned to work as Producer in Charge of a different programme - Programme 5 - in February, 2009. She adds that this was a nighttime daily live programme - four days a week - which involved approximately one and a half hours in studio per day and although it was not ideal she accepted the assignment having discussed the matter with Dr. Z. The complainant states that she continued on this assignment until January, 2010, when she availed of a career break initiative offered by the respondent and remained on that sabbatical at the date of Hearing. She adds that in June, 2009 she was assigned Producer in Charge of the respondent's coverage of the European elections and in October of that year had a similar assignment- although not under the title of Producer in
Charge of Special Events. It is submitted on behalf of the complainant that the alleged treatment of her by the respondent from August, 2006 until her return to work in February, 2010 constitutes discrimination of her on grounds of disability. It is further submitted that the respondent failed to explore the provision of reasonable accommodation to enable her perform her role within the organisation - in particular assignment as Producer in Charge in areas such as Drama and Documentaries or other pre-recorded programmes which she contends would have been more suitable in terms of the nature of her disability. In support of her assertion in this regard the complainant refers to one colleague in particular (Ms. R) who was assigned to pre-recorded programmes on her return to work following a relatively lengthy absence due to illness.
3.12 In summary, it is submitted on behalf of the complainant that the persistent attempts of the respondent to assign her to posts within the organisation which she considered unsuitable for her due to her disability, constitute less favourable treatment of her contrary to the Employment Equality Acts, 1998 - 2007. It is further submitted that even if the assignments never actually occurred the anxiety and distress the complainant suffered each year having to resist each assignment and argue what she believes was the same case each year, amounts to less favourable treatment of itself. Counsel for the complainant also submits that the respondent did not act in a proactive manner in attempting to deal with the complainant - indeed its actions resulted in the complainant enduring a forced absence of five months from work - and in this regard the complainant seeks to rely on the Decision of this Tribunal in Mr. A v A Government Department and the Determination of the Labour Court in A Hotel v A Worker. In addition, Counsel submits that the respondent carried out no meaningful assessment of the work or workplace with reference to the complainant's disability and in these circumstances the respondent has failed to provide her with reasonable accommodation in terms of section 16 of the Acts. It is also submitted that the alleged treatment of the complainant by the respondent from August, 2006 until her return to work in February, 2010 constitutes discrimination of her on grounds of disability. Finally, Counsel submits that the removal of her status as Producer in Charge, in terms of the Special Events and on assignment to Programme 4, constitutes victimisation of the complainant in terms of section 74(2) of the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety and notwithstanding this submits that the complaint is not one which is appropriate for referral under the Employment Equality Acts, 1998-2007 and is in reality an internal dispute about demarcation and the allocation of assignments. Moreover, it submits that the alleged treatment of the complainant in 2006 and 2007 is not properly before the Tribunal as the Referral Form indicates that the first and most recent occurrence of discrimination was 29 May, 2008 and it is only events after that date which forms part of the complaint. The respondent accepts that the complainant has a "disability" in terms of section 2 of the Acts. It adds that (i) the disagreement which arose in respect of the assignments or duties would have arisen in any event- regardless of the complainant's medical condition and (ii) the complainant invoked the respondent's Internal Grievance Procedure which comprehensively addressed these issues.
4.2 The respondent disputes the accuracy of the complainant's description of her employment. It states that she is employed as a Radio Producer and that she occasionally works on special or "once off" events as outlined by her. It adds that these "once off" events involve the temporary assignment of the complainant to the particular event adding that it is not a permanent appointment or permanently assigned area of responsibility. The respondent further states that the position of Producer in Charge is also temporary in nature. It adds that the title is given to the person whose assignment involves leading a team, strand or project and that it applies only for so long as that assignment exists. It rejects the complainant's assertion that assignment as Producer in Charge is a promotion - and the reverse that removal from the assignment is a demotion - and adds that any such assignment does not confer any special contractual status to the employee. The respondent adds that the basis of the title is governed by a collective agreement with the relevant trade union - the terms of which include, inter alia, that the role attracts payment of an additional allowance for the period of the assignment and that payment of the allowance itself is made permanent and pensionable where an employee holds the allowance for four years out of a rolling seven year period, regardless of future assignments. It states that the complainant has earned this latter entitlement by virtue of the appropriate clause of the collective agreement. The respondent rejects the complainant's assertion that she is entitled to an on-going role as Producer in Charge and that she holds the title of Producer in Charge of Special Events - which it states, is not a title or role that exists within the organisation.
4.3 The respondent accepts that the complainant was operating as Producer in Charge on Programme 2 in June, 2006 and that this was a one hour weekly programme. The respondent (Mr. D) states that in May/June, 2006 the respondent's Editorial Board decided to transfer the complainant to Programme 3 as part of its scheduling process. Mr. D adds that the complainant raised concerns about her ability to take on the assignment, given her medical condition, and he decided to refer her to Dr. Z for a medical assessment. He further states that his interpretation of Dr. Z's subsequent report on the complainant (dated 6 September, 2006) was that the complainant was fit for work subject to certain conditions. The respondent (Ms. X) states that there had been very little movement of staff between programmes pre 2006 and when the Editorial Board decided to "rejuvenate" the Channel there was considerable resistance to the proposed changes, by presenters and producers alike - a point confirmed by Mr. D. He further states that the assignment did not proceed as there were more pressing moves required at that time - although he is unable to say if the complainant was ever informed of this.
4.4 The respondent accepts that the complainant was again considered for an assignment to Programme 3 in August, 2007 and submits that it has every right to consider such an assignment. It adds that the decision was again taken by the Editorial Board as the respondent was of the view that the complainant was fit for work subject to the conditions set out in Dr. Z's report of 6 September, 2006. In the course of the Hearing Mr. D stated that the Editorial Board would not have received a copy of Dr. Z's report and that he would have given the Board an overview of its contents to assist it in its deliberations on assignments. Mr. D adds that the proposed assignment did not proceed again for the same reasons as 2006. In the course of the Hearing both Mr. D and Ms. X stated that the rotation of staff is far more frequent since 2006 - although both accept that the complainant's version of the process prior to then is correct.
4.5 The respondent (Ms. X) rejects the assertion that she ignored the complainant deliberately. She states that the complainant was one of the most experienced current affairs producers in the respondent organisation and she wished to maximise her experience in her (Ms. X's) effort to rejuvenate the Channel. She adds that her plan was to establish clear reporting lines in the respondent with the Editors dealing with the Producers in Charge who in turn would report to her as she has overarching responsibility as Head of Radio. She further states that she had daily communication with the Editors and there would have been regular meetings between her and the Producers in Charge - although the level of contact would vary with more priority/contact occurring with those Producers in Charge dealing with the Channel's flagship programmes. Ms. X accepts she told the complainant that she was not Producer in Charge of Special Events, adding that in her (Ms. X's) view no such position ever existed and that there was no written confirmation that the complainant had such a role. She adds that her view was that the complainant was Producer in Charge of Programme 2 and Árdfhéiseanna and she subsequently confirmed this view to the complainant by e-mail dated 19 May, 2008. The respondent rejects the complainant's assertion that the views expressed by Ms. X represent in effect a demotion of the complainant and states that she retained the allowance payable to Producers in Charge on foot of the relevant collective agreement- although it does accept the conclusion in Mr. E's report that the complainant "had de facto responsibility for Special Events in radio current affairs for a number of years". However, it adds that the report also stated that the respondent was not required to keep her in that role. It therefore rejects the assertion that this treatment of her constitutes victimisation contrary to the Acts.
4.6 The respondent accepts that it proposed a new assignment for the complainant to Programme 4 in May, 2008 (to take effect on her return in September of that year) and that this assignment would be as Producer. It adds that it notified the complainant of the proposed assignment before she went on her term-time because to do otherwise would result in the complainant receiving a much shorter period of notification. The respondent states that the decision to make the assignment was taken by the Editorial Board. Ms. X states the Board were of the view that the large team involved with that programme would accommodate the complainant and would not have placed any undue stress or pressure on her. It submits that the reasons it proposed the complainant be reassigned includes (i) it is entitled to reassign and deploy resources to enhance the radio schedule, (ii) the need to open the area of Special Events to other Producers to give them exposure to those events and develop their skills and knowledge in those areas and (iii) the need to bring new editorial ideas and creativity to such programming. Ms. X states that the complainant was considered by the Editorial Board to be well suited for Programme 4 given her extensive experience. In the course of the Hearing Mr. D stated he was of the view that it was reasonable for the respondent to assign the complainant to Programme 4 pending clarification of her medical needs - bearing in mind the accommodations (special chair, earphone etc.) it has provided previously to her.
4.7 In the course of the Hearing Ms. X stated that she was liaising with Mr. D on the issue of the complainant's suitability for the assignment - in terms of her disability - and believed from the information she received from that source that the respondent was accommodating the complainant. She also confirmed that she was aware (i) of the complainant's disability in May, 2008 when the assignments were finalised and (ii) the complainant had previously raised concerns about her assignment to daily live programming. Mr. D confirms that the respondent was aware of the final sentence of Dr. Z's opinion of 12 September, 2007 that if the complainant's schedule was to change "it would be necessary to re-evaluate her fitness to work in her new role" and states that such a re-evaluation was overlooked before the assignments were finalised. The respondent states that once the complainant raised her concerns about the assignment it referred her to Dr. Z for examination. It states that on foot of this latter opinion the assignment never proceeded and the decision was eventually scrapped. In the course of the Hearing Ms. X confirmed that no other alternatives to the complainant's assignment to Programme 4 were considered at that time because (i) the schedule had been confirmed and there was no room for flexibility and (ii) the Editorial Board did not consider the alternatives suggested by the complainant - Drama and Documentaries - to be "the right place for big hitters" and that is how they saw the complainant. Ms. X also confirmed that the thought of assigning her to Drama/Documentaries had "never crossed her mind". She also accepted that these programmes do not involve the pressure of live radio as identified by the complainant.
4.8 The respondent states that the complainant did not resume duties in September, 2008 and it is unclear as to how her absence between then and February, 2009, when she resumed work, is classified. In the course of the Hearing Dr. Z could not recall if and why she made the suggestion to the complainant to stay out of work on sick leave as alleged by her. The respondent (Mr. D) states that once the complainant expressed her view that she was unable to work on Programme 4 he advised, by e-mail dated 4 June, 2008, that he would be necessary for her to attend Dr. Z for further medical examination. He adds that for a number of reasons - in particular annual leave arrangements of the parties concerned - this appointment did not take place until early September, 2008 and the identified early morning starts - which would occur on Programme 4 - posed difficulty for the complainant and ultimately the assignment never proceeded. He adds that at this time he was also handling the complainant's formal grievance which she had lodged under the respondent's Internal Grievance Procedure.
4.9 It is submitted on behalf of the respondent that it handled this grievance in an appropriate manner. The respondent (Mr. D) states, in the first instance, that the complainant was on term-time from June-August inclusive - and these months were effectively ruled out in terms of progressing the matter. He adds it had been his intention that Mr. C would investigate the grievance but as the complainant had been in contact with him about the matter it was considered inappropriate for him to do so in the circumstances. The respondent (Mr. D) further states that the complainant had specifically requested that the person investigating the grievance would have an editorial background. He adds that it therefore took some time to find a suitable senior member of personnel to deal with the matter - and Mr. E was eventually appointed to investigate the complaint. Mr. D states that he briefed Mr. E and set out his terms of reference (orally) and he proceeded with his investigation. Mr. D accepts that Mr. E interviewed Ms. X first as part of his investigation but submits that this does not, of itself, constitute discrimination of her, adding that the complainant states in her submission that he (Mr. E) "made an honourable attempt to deal with the matters fairly".
4.10 Mr D states that the respondent accepts the findings of Mr. E's Report on conclusion of his investigation and states that the respondent acted on same. He adds the respondent noted, in particular, the recommendation that the complainant should be re-assigned to a new post with Radio Current Affairs taking account her health issues and the design of the particular post and that Dr. Z should be involved in this process. Mr. D further states that this is exactly what happened with the complainant's assignment to Programme 5 on her return to work in February, 2009. He rejects the assertion that he treated the complainant less favourably in respect of the investigation process adding that annual leave, sick leave and the Christmas period elongated resolution of the issues around the complainant's assignment.
4.11 In conclusion, the respondent states that this complaint is an internal grievance matter - which it has dealt with - and is not one which is appropriate to this Tribunal. Notwithstanding this it submits, in the first instance, that the alleged events surrounding the 2006 and 2007 assignments are out of time as it is only matters after 29 May, 2008 which could be properly before the Tribunal. In the alternative, it submits that these issues were handled quickly and ultimately the assignment never proceeded and the complainant suffered no detriment. The respondent further submits that it acted appropriately as regards the assignment in 2008. It adds that once it had the necessary medical opinion it acted to ensure that the assignment to Programme 4 did not take place and that the eventual assignment to Programme 5 represents reasonable accommodation of her, particularly when coupled with the equipment it had previously provided her. It adds, whilst accepting that the complainant remained absent from work for five months, that it handled the matter as empathetically as possible and the complainant was on full pay during the period - consequently there was no detriment to her. The respondent further submits that it handled the complainant's formal grievance as expeditiously as possible given the circumstances which prevailed. Finally, it is submitted on behalf of the respondent that the proposed assignment of the complainant as Producer to Programme 4 cannot constitute victimisation of her contrary to the Acts. It states that the assignment arose before 30 May, 2008 - which the respondent asserts is the first occasion the complainant makes reference to her disability.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not (i) 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 in relation to her conditions of employment as regards the assignments it proposed for her in each of the years 2006-2008, (ii) the respondent afforded the complainant reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2007 and (iii) the respondent victimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2007. 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 the parties at the Hearing.
5.2 Before proceeding to the substantive aspects of this complaint I must address the preliminary issue raised by the respondent's representative - i.e. that the alleged events in 2006 and 2007 do not form part of my investigation, in circumstances where the Referral Form to this Tribunal states that the date of the first alleged occurrence of discrimination was 29 May, 2008. In the first instance it should be noted that the referral form (Form EE1) is not a statutory form and is, in essence, an administrative tool for this Tribunal and the parties. Its objective, inter alia, is to give basic details of the complaint and a brief overview of the issues involved. It cannot therefore be regarded as a rigid document which is not capable of expansion and the Tribunal has treated it as such on many occasions in the past. The Tribunal's approach in this regards has been approved by the High Court in County Louth VEC v Equality Tribunal. The Tribunal has also held that events which have a sufficient link may form an evidential chain which can be taken into consideration by an Equality Officer in the course of an investigation. In the instant case the issue in dispute in 2006 and 2007 is identical to that in 2008 - the assignment of the complainant to a particular Programme in September of each year. Moreover, the personnel within the respondent involved in each of these decisions are the same on each occasion. Finally, the events in 2006 and 2007 were detailed in the submissions to this Tribunal and on that basis I am satisfied that no prejudice arises to the respondent as it had adequate time to prepare its response. Consequently, I am satisfied that there is a sufficient link between the three alleged incidents to bring them within the ambit of my investigation and I find that they are all validly before the Tribunal for investigation.
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 she can rely in asserting the she was victimised and/or 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 her case cannot succeed.
5.4 The first of these incidents relates to the respondent's decision to re-assign the complainant to Programme 3 on her return to work in 2006 following her absence during the months June-August on term-time. The complainant states that shortly before she commenced her term-time she had been absent from work for several weeks following a motor bike accident which had exacerbated a long standing back/neck problem she suffered. I am satisfied that her assignment on Programme 2 at this time did not pose too many difficulties for her given the nature of the programme and the flexibility her Editor (Mr. Y) afforded her. It is clear that once the complainant became aware of the proposed assignment to Programme 3 she raised her concerns with the respondent and ultimately dealt with Mr. D on the matter. It is also clear that immediately upon receipt of the complainant's objections to the assignment Mr. D referred her to Dr. Z for assessment and she met with Dr. Z on 6 September, 2006. It is accepted by the respondent that Programme 3 was a live daily broadcast whereas Programme 2 was an hour long weekly programme. In the course of the Hearing evidence was given by Ms. R (who has been a Producer in Charge since 2006) that there was a distinct difference between weekly/daily programming and live/recorded programming. She compared producing a live programme to driving a car - in that the Producer cannot leave the studio for the duration of the programme. This opinion was also confirmed (independently) at the Hearing by Ms. S - a researcher with the respondent - who added that it was not possible to take breaks during a live broadcast. These witnesses support the complainant's assertion that it is impossible to take breaks during a live programme.
5.5 A copy of Dr. Z's written report of September 2006 was furnished to the Tribunal and Dr. Z attended at the Hearing to give evidence. I note from Dr. Z's report that she considered the complainant fit for work with certain restrictions as follows -
"1 Restrict use of constant computer work to two hours at a time.
2 Alternate sitting and standing as needed.
3 Take frequent five minute breaks at half hourly intervals when working at computer."
In the course of the Hearing Dr. Z confirmed that her view was that the complainant could continue in her role with the above restrictions. She added that this opinion did not alter after she had received a letter from the complainant's Specialist in early October, 2006- when she was advised that the complainant was suffering from a prolapsed disc - and she communicated this to the respondent on 25 October, 2006, recommending the provision of a special chair for the complainant. In light of the foregoing I am satisfied that the respondent was unaware of the full extent of the complainant's condition at the time the decision to reassign her to Programme 3 was made and I find that its proposal to do so in August, 2006 does not constitute less favourable treatment of her on grounds of disability contrary to the Acts. Ultimately, the assignment did not proceed but it is noteworthy that the reasons advanced by the respondent at the Hearing for this was not because of the complainant's disability, but because the assignment was subsequently not considered to be a priority. It is also noteworthy that the respondent was on notice, by 25 October, 2006 at latest, that the complainant was suffering from a condition which amounts to a disability under the Acts - and I note this is accepted by the respondent - and from then onward there it had a proactive duty to examine the need to provide reasonable accommodation to her in terms of her role within the organisation.
5.6 The respondent furnished the Tribunal with copies of all medical opinions etc. it received from Dr. Z in respect of the complainant. I note from this documentation that Dr. Z met with the complainant on 17 January, 2007 and 25 April, 2007. In the course of the Hearing Dr. Z stated that her opinion on both of these occasions was the same as it had been the previous October - that the complainant was fit to remain in her role subject to restrictions - i.e. those set out in the preceding paragraph. In the course of the Hearing Dr. Z was unable to clarify what role she meant but I am satisfied, on balance, that her prognosis was premised on the role the complainant held at that time - i.e. Producer in Charge of Programme 2. It is common case that the respondent proposed to reassign the complainant to Programme 3 in 2007. The respondent states that it was entitled to propose that assignment and in doing so was content that it was accommodating the complainant in terms of Dr. Z's medical opinion from the previous years and those reports received during early 2007. However, as I have said above I am satisfied that Dr. Z's opinion was premised on the complainant's role as Producer in Charge on Programme 2 and I am further satisfied that this was evident to the respondent. This situation had not changed in 2007. Evidence was given by both Ms. R and Ms. S at the Hearing as regards the conditions under which live radio is broadcast (see Paragraph 5.4 above) and I am satisfied, on balance, that the restrictions suggested by Dr. Z (in September, 2006) in terms of reasonable accommodation for the complainant could not be facilitated in a "live radio environment". I am of the view therefore that the respondent's decision to propose the assignment was premature. It ought to have referred the complainant back to Dr. Z for further examination before making the decision to reassign the complainant - an approach it subsequently took some months later.
5.7 It is common case that the complainant was not ultimately assigned to Programme 3 at that time and the respondent submits that the complainant was not subjected to less favourable treatment. I cannot accept this proposition. The respondent was well aware that the complainant suffered with a disability when the decision about the assignment was made by the Editorial Board and it gave no meaningful consideration as to what treatment or facilities it could afford her to perform the tasks associated with the new assignment. In the course of the Hearing the respondent (Ms. X and Mr. D) stated that the complainant was treated in the same manner as all of the other staff who had their assignments changed that year. It is well established that discrimination occurs "when the same rules are applied to different circumstances or different rules are applied to similar circumstances". I am satisfied that the respondent treated the complainant in the same manner as it did all other staff who were subject to the decision by the Editorial Board. Accordingly, I find that the respondent discriminated against the complainant on grounds of disability in respect of the assignment process in September, 2007.
5.8 The complainant also submits that the respondent failed to afford her reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2007. Prior to the coming into force of the Equality Act, 2004 in 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. 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 and went on to apply subsection 16(3)(b) of the Acts accordingly. This approach was subsequently endorsed by the Labour Court in A Company v A Worker. The respondent gave no meaningful consideration at all to what accommodation might be afforded to the complainant to enable her undertake the tasks involved with the post, or indeed to explore other assignment options that might have been suitable for the complainant, given her disability. The respondent (Ms. X) states that the Editorial Board was attempting to rejuvenate the Channel and the reassignments were necessary in that regard. She adds that that she viewed that complainant as a highly experienced Producer, that she was a "heavy hitter" and that the thought of assigning the complainant to the Dramas and Documentaries area "never crossed her mind". The respondent also states that the rotation of Producers was necessary to enable staff develop and improve their skills and experience. It is an accepted principle of business that an employer is entitled to utilise its staff to the optimum effect. However, this entitlement is not unfettered and must be conducted in accordance with the statutory requirements under employment equality legislation. Data furnished to the Tribunal by the respondent shows that during the period 2006-2008 seven producers remained assigned to the same programme/area during that period. Whilst acknowledging that there may be other reasons for this I am of the view that the data is inconsistent with the respondent's reasons outlined above. Consequently, I find that the respondent contravened section 16(3) of the Acts.
5.9 It is common case that the respondent proposed assigning the complainant to Programme 4 with effect from September, 2008 and that this was a live daily programme - similar to Programme 3 which had been proposed the previous two years and had been stated by the complainant to be, in her view, unsuitable in terms of her disability. It must be pointed out here that it is not for a complainant to decide what role within the organisation is suitable for him or her, in terms of a disability and the issue of reasonable accommodation. In a recent determination the Labour Court held as follows
"The complainant's case in essence is that if he suffers from a disability then the Respondent must reasonably accommodate this disability and that this reasonable accommodation involves moving him to a position in which he would have no contact with prisoners. The Court is of the view that this is an incorrect interpretation of the provisions of Section 16. The purpose of Section 16(3) is to provide a person with a disability with 'appropriate measures' or 'reasonable accommodation' in order to render that person fully capable to undertake the full range of duties associated with their post.
In this particular case the Complainant's suggestion that the Respondent provide him with alternative employment outside of any contact with prisoners could not be deemed to come within the provision of 'appropriate measures' as provided for in Section 16 as it will not enable him to carry out the full range of duties as a Prison Officer."
This Determination is apposite to the instant case. However, as stated in the preceding paragraph the right of an employer to utilise it staff to the optimum effect is not unfettered and must be conducted in accordance with the statutory requirements under employment equality legislation. In the case of an employee with a disability it must have regard to the ability of the person to fully perform the functions attached to the post and in reaching that decision it has "an obligation to carry out a full assessment of the needs of a person with a disability and of the measures necessary to accommodate that person's disability"
5.10 In the course of the Hearing on the instant case the respondent (Ms. X) again stated that the decision to propose the assignment was taken by the Editorial Board and that the Board was of the view that the large team involved with that programme would accommodate the complainant and would not have placed any undue stress or pressure on her. She adds that this view was underpinned by the information received from Mr. D on the issue of the complainant's suitability for the assignment - in terms of her disability - and on foot of that information she believed that the respondent was accommodating the complainant. In the course of the Hearing Mr. D stated that the Editorial Board was never given a copy of Dr. Z's medical reports on the complainant but instead he gave a synopsis of same to the Board. In those circumstances I find it difficult to reconcile how the Editorial Board reached the decision it did as the most recent opinion from Dr. Z (dated 12 September, 2007) stated as follows - "if her schedule is to change .... it would be necessary for me to re-evaluate her fitness to work in her new role". I note that Mr. D accepts that this re-evaluation did not occur and states that it was due to an oversight. It is therefore inexplicable to me how Mr. D could state at the Hearing that he was of the view that it was reasonable for the respondent to assign the complainant to Programme 4 pending clarification of her medical needs, in circumstances when he was fully aware of Dr. Z's previous opinion.
5.11 I further note that Mr. D in his e-mail of 3 September, 2008 to the complainant advised that he had "previously put forward her case for remaining on Programme 2 but the request could not be accommodated". In the course of the Hearing Ms. X stated that she could not recall Mr. D making such a comment. At the Hearing Mr. D also stated that the HR Department had no role in monitoring the assignments - and the nature of same - to individual Producers, this was a role for the Editorial Board. It appears to me that there was a huge gap in the communication between HR and the Editorial Board as regards the complainant and that no one had overall responsibility for ensuring the assessment of the reasonable accommodation needs of the complainant and that these were fully taken into account in any decision about her assignment. Indeed, it seems that both HR and the Editorial Board are seeking to abdicate responsibility for the events which unfolded. In addition, it appears that Mr. D is attempting to abdicate any responsibility HR had in relation to the provision of reasonable accommodation and that Ms. X and the Editorial Board arrived at a conclusion that they did not have the necessary expertise to reach, in the circumstances. Nonetheless, the respondent is responsible for the actions of the personnel who were involved in this process, whether they are from HR or the Editorial Board. In light of the foregoing and for the reasons set out in the foregoing paragraphs, I find that the respondent (i) discriminated against the complainant on grounds of disability in respect of the proposed assignment in 2008 and (ii) failed to afford her reasonable accommodation in respect of that assignment in accordance with section 16 of the Acts.
5.12 The complainant states that she did not return to work in September, 2008 and attended another appointment with Dr. Z at the request of the respondent. She states that shortly after this appointment Dr. Z suggested to her that she (the complainant) take a short period of sick leave to enable the issue of her assignment be resolved. In the course of the Hearing Dr. Z stated that she could not recall making this comment but there is no doubt that the complainant was absent from work at that time and continued to be absent until the beginning of February, 2008. There is also no doubt that this absence had the respondent's approval and that it paid the complainant her salary during this period, although there is a significant lack of clarity about how this absence was characterised and recorded by the respondent. Whilst the respondent was exploring avenues as regards returning the complainant to work during this period it was also dealing with the formal grievance filed by the complainant on 30 May, 2008. The complainant submits that the manner in which her grievance was handled and the undue delay in permitting her return to work constitute less favourable treatment of her on grounds of disability contrary to the Acts.
5.13 The complainant e-mailed Mr. C on 30 May, 2008 invoking the respondent's formal grievance procedure in respect of the manner in which she had been treated by Ms. X as regards her (the complainant's) role as Producer in Charge of Special Events and her proposed assignment as Producer to Programme 4. I am satisfied that the respondent acted on the matter immediately by arranging an appointment for the complainant with Dr. Z. However this appointment did not take place until early September, 2008 as a result of the unavailability of all three parties (at different times) due to annual leave. The complainant e-mailed Mr. C on 14 August, 2008 in which, inter alia, she expressed her concerns about the lack of progress as regards her formal grievance. Several e-mails between the parties followed, including Mr. D's e-mail of 3 September, 2008 wherein he states that the complainant's request to remain on Programme 2 cannot be accommodated and advises that her assignment to Programme 4 is to proceed. The complainant e-mailed Mr. C on 9 September, 2008 re-iterating her objection to the assignment and made lengthy reference to the issues which formed part of her grievance. The respondent (Mr. D) states that as a result of the complainant involving Mr. C in the process he (Mr. C) was unable to investigate the complainant's grievance and alternative senior manager had to be identified for that role and I accept that the respondent was perfectly correct in the approach it took. I note the complainant subsequently requested that the person who was to investigate her grievance should have editorial experience and the respondent made every effort to accommodate that request with the appointment of Mr. E to that role.
5.14 The complainant was informed of Mr. E's appointment on 16 October, 2008 and sought immediate clarification of how the investigation was to proceed. Mr. D replied later that same day advising, inter alia, that Mr. E would meet with Ms. X first then the complainant. The complainant raised her concerns about this approach in her e-mail of 22 October, 2008. Nevertheless Mr. E conducted his investigation in that manner and the complainant again registered her objection to the approach on 25 October, 2008. The complainant was furnished with a copy of Mr. E's report on 20 November, 2008. The respondent's Grievance Procedure is silent on how an investigation should be conducted. I note Mr. D stated at the Hearing that he briefed Mr. E as regards the issues in dispute but could not recall whether or not he had communicated the complainant's procedural concerns to him. I am satisfied that best practice, and indeed common sense, would dictate that the complainant should have been interviewed first so as to enable her fully set out the issues comprising her grievance and thus give Ms. X the opportunity of fully addressing all aspects of the complaint. However, I do not find that the failure of Mr. E to adopt this approach constitutes less favourable treatment of the complainant contrary to the Acts. Indeed, I note the complainant's comment in her submission that Mr. E had "made an honourable attempt to deal with the matters fairly". The entire process took just under six months -from the filing of the grievance to the transmission of the Final Report to the complainant. Three of these were the holiday months when the parties were absent on annual leave for different periods. I am satisfied that the complainant contributed to any delay by involving Mr. C from an early date - thus preventing him from investigating the matter. I am further satisfied that the matter was delayed as a result of the respondent seeking to accommodate the complainant's request that the person appointed to investigate the grievance should be a person with editorial experience. It was necessary for the appointee to be of a senior grade given the seniority of both the complainant and Ms. X. In light of the foregoing I am satisfied that the actions of the respondent did not unduly delay the investigation of the complainant's grievance. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in respect of this aspect of her complaint and cannot therefore succeed.
5.15 During this period the respondent was attempting to deal with the issue of the complainant's assignment and return to work. The respondent was unable to point to any real efforts on its part to identify a post that would reasonably accommodate the complainant in terms of her disability and thus enable her return to work between September, 2008 and 20 November, 2008 - when Mr. E's report issued. Indeed, I note from Dr. Z's e-mail of 24 November, 2008 to the complainant that she states "despite reminders I have not heard anything back from Radio Management about the definition of the Producer role" in respect of Programme 4. It appears however, that following the issue of Mr. E's report the process gained momentum. A number of e-mails flowed between the parties, several of which focussed on either party's perspective of what the content of Mr. E's report actually said. In addition, the complainant met with Mr. D on 15 December, 2008 when, it appears, some discussion on her possible return to work took place. Due to the Christmas break and the absence of Mr. D from work around this time, final agreement on the matter did not occur until mid-late January, 2009 and the complainant returned to work in early February of that year.
5.16 The complainant was absent from work, through no fault of her own, because the respondent insisted, in September, 2008, that she could only return to the role on Programme 4. I have already found that the actions of the respondent in this regard constituted discrimination of the complainant contrary to the Acts. It follows therefore, that placing the complainant on this leave - the respondent was unable to confirm how it recorded this absence - flows from this unlawful treatment and is tainted. The fact that the complainant received her salary during this period does not detract from this fact, although it is a factor for consideration in terms of assessing redress. In the course of the Hearing Ms. R stated that she had been absent from work for several months due to a condition (details provided) and returned to work in September, 2010 to an Arts Programme, adding that she was given significant latitude in the role and gradually came back to full duties. Whilst this is subsequent to the complainant's interaction with the respondent, it is in stark contrast to the treatment she experienced. In light of the foregoing I find that the complainant was discriminated against on grounds of disability contrary to the Acts and this element of her complaint succeeds.
5.17 The complainant asserts that the removal of her status as Producer in Charge, in terms of the Special Events and her proposed assignment to Programme 4 in 2008, constitutes victimisation of the complainant in terms of section 74(2) of the Acts. Section 74(2) of the Employment Equality Acts, 1998-2007 defines victimisation as follows:
"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 complaint of discrimination made by an employee to the employer.............
(f) an employee having opposed by lawful means and act which is unlawful under this Act......."
In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have take action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
5.18 The focus of the complainant's allegations as regards this aspect of her complaint is Ms. X. The complainant states that she had no real contact with Ms. X until May, 2008 and that this was in stark contrast to the level of contact - which the complainant asserts was daily - that she had with her predecessor. Ms. X states that she was anxious to establish clear reporting lines and in that regard Editors would deal with Producers in Charge, although she added that she would have had more regular direct contact with those Producers in Charge on the Channel's flagship programmes. In the course of the Hearing Ms. R stated that she had regular contact with Ms. X when she (Ms. R) was Producer in Charge on a particular programme (details supplied). However, this was one of the Channel's flagship programmes and is therefore consistent with Ms. X's comments. In addition, it is clear that Ms. X would not have been aware of the complainant's condition from the outset of her (Ms. X's) employment. The complainant asserts that Ms. X effectively ignored her from the beginning. If this is the case, and I make no finding on this issue, it could not have been in reaction to any protected act having been taken by the complainant - which the Labour Court has stated must be present for a claim of victimisation to be made out. Consequently, I find that the complainant has failed to establish a prima facie case of victimisation in relation to this element of her complaint.
5.19 The complainant contends that she had been Producer in Charge of Special Events and had been performing those functions for several years. It is common case that at a meeting on 28 April, 2008 Ms. X informed the complainant she was not Producer in Charge of Special Events and that in her (Ms. X's) view no such position existed. I note from Mr. E's report that he concluded the complainant had "de facto responsibility for Special Events" and that this conclusion was accepted by the respondent (Mr. D) in his e-mail of 9 January, 2009 to the complainant and was subsequently confirmed by him at the Hearing. I further note that Mr. E's report also states that once this assertion is accepted it "does not require Radio Management to keep her in that role. It is my view that Special Events PIC does not imply that that particular PIC post is 'special' or different from others, simply that it covers that brief". I note that the issue of the role of Producer in Charge and the allowance that post attracts are governed by a collective agreement between the respondent and SIPTU. The role is neither promotional nor permanent in nature, although as Mr. E concluded "there are very few examples of individuals losing that role". It is however viewed by staff as a position that carries prestige and status - a point confirmed by both Ms. R and Ms. S at the Hearing, as well as by Mr. E in his report. This aside, I am satisfied that the respondent is entitled to assign staff as it sees fit within that structure - a point also confirmed by Mr. E in his report, although it must do so in a manner which complies with employment equality legislation.
5.20 In the course of the Hearing Ms. X confirmed that in April, 2008 she was aware the complainant suffered from a disability in terms of the Acts. It is clear that she was also aware the complainant had on two previous occasions resisted transfer to an assignment that she had argued was unsuitable in terms of her condition. Having given careful consideration to the arguments advance by the parties, I am satisfied that the complainant's actions in this regard constitute lawful opposition to an act which in unlawful under the Acts - i.e. a protected act in terms of section 74(2)(f) of the Acts. The behaviour of Ms. X - in denying that the complainant was Producer in Charge of Special Events - amounts to adverse treatment of the complainant - in that it diminished her status in the eyes of her colleagues. I am also satisfied, on balance, that the actions of Ms. X were in direct response to the complainant having resisted the aforementioned assignments. Consequently, I find that the respondent victimised the complainant in terms of section 74(2) of the Acts in respect of this element of her complaint.
5.21 In the final element of her complaint the complainant alleges that the proposed assignment of her to Programme 4 in September, 2008 as Producer amounts to victimisation contrary to the Acts. It is common case that the complainant was Producer in Charge of Programme 2 prior to her departure on term-time in June, 2008. It is also common case that the proposed assignment on her return was as Producer on Programme 4 - one of four personnel at that level who would be rostered on that programme. As stated previously it is an entitlement of Management within the respondent to assign staff in the most effective and efficient manner, provided it does not breach employment equality legislation. At this stage the respondent had objected to her proposed assignment for a third year in a row on the basis of her disability and the failure of the respondent to afford her reasonable accommodation. The proposed assignment was undoubtedly a change in her work schedule and environment and the respondent was on clear notice from Dr. Z that should such a change be proposed it would be necessary for her to re-evaluate the complainant. This was the most up to date medical opinion the respondent had on the complainant from Dr. Z. I am satisfied that both Ms. X and Mr. D were aware of this requirement yet proceeded with the assignment. I do not accept, given the complainant's strong objection to the proposed assignment, that the failure to refer her to Dr. Z for re-evaluation was an oversight. Moreover, as stated above I find it inexplicable that they proceeded to press the complainant to accept the assignment when in possession of the information they had. In addition, both Ms. R and Ms. S, as well as Mr. E in the course of his investigation, stated that it was extremely rare for a Producer in Charge to be reassigned as Producer. Applying the test set out by the Labour Court in Tom Barrett v Department of Defence to the instant case I find that the behaviour of the respondent constitutes victimisation in terms of section 74(2) of the Acts and the complainant is therefore entitled to succeed in this element of her complaint.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that -
(a) the respondent did not discriminate 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 in respect of her assignment in September, 2006.
(b) 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 in respect of the assignment process in both September, 2007 and 2008.
(c) the respondent failed to afford the complainant reasonable accommodation in terms of section 16 of the Acts in respect of the assignment process in both 2007 and 2008.
(d) 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 in respect of the manner in which the respondent handled her formal grievance under the Internal Grievance Procedure.
(e) 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 when it placed her on leave and delayed her return to work until February, 2009.
(f) the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2007 in respect of the manner in which Ms. X communicated with her from the outset of her appointment as Head of Radio until April, 2008.
(g) the respondent victimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2007 in respect of the manner in which Ms. X (i) denied the complainant performed the role of Producer in Charge of Special Events in April, 2008 and (ii) assigned her the role of Producer to Programme 4 in September, 2008.
6.2 It is well established that the redress ordered must be effective, proportionate and dissuasive. Section 82 of the Employment Equality Acts, 1998-2011 provides that in addition to awarding a complainant compensation for the effects of the unlawful treatment, an Equality Officer may also order a specified course of action. I have carefully considered the issue of redress in this case and I am satisfied that it is appropriate for me to exercise this latter authority. I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 the following-
(i) that the respondent the respondent pay to the complainant the sum of €40,000 by way of compensation for the distress suffered and the effects of the discrimination and victimisation on her. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
(ii) that should the complainant's absence between September, 2008 and February, 2009 be recorded as sick leave, that this record be expunged and that the period should count as reckonable service for the purposes of the complainant's relevant employment entitlements.
(iii) that the respondent provide the complainant with reasonable accommodation in respect of all future assignments in light of the jurisprudence on what is required in terms of that concept and the manner in which any decision on same is reached by an employer.
(iv) that the respondent's procedures for dealing with assignments of employees with a disability be reviewed and amended as necessary, but in particular to ensure that the personnel making the final decisions on assignments have copies of the actual medical opinion, with or without direct contact with the medical professional, so as to enable them make a fully informed decision. This review should be completed with four months of the date of this Decision, and
(v) that all personnel who have responsibility for making the decisions mentioned above receive appropriate training as regards employees with a disability and the rights and obligations of the parties under employment equality legislation when dealing with such a matter. This training should be completed in tandem with the aforementioned review but should not be completed longer than six months of the date of this Decision.
Whilst not part of the redress which can be enforced, I would recommend that the respondent review its Internal Grievance Procedure to ensure that it conforms to best practice in the area.
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Vivian Jackson
Equality Officer
14 October, 2011