The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-176
PARTIES
Brian Mullen
(Represented by Ó Scanaill & Co. Solicitors)
AND
Smurfit Kappa Ireland Limited
(Represented by Tom Mallon B. L. instructed by Byrne Wallace)
File reference: EE/2010/585
Date of issue: 17 December 2012
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Family Status - Disability - Conditions of Employment - harassment - victimisation
1. DISPUTE
1.1 This dispute concerns a claim by Mr Brian Mullen that he was discriminated against by Smurfit Kappa Ireland Limited on the grounds of family status and disability contrary to section 6 (2) of the Employment Equality Acts in relation to conditions of employment in terms of sections 8 of the Acts, that the respondent failed to provide him with reasonable accommodation in accordance with section 16 of the Acts, that he was harassed in accordance with section 14A of the Acts and that he was victimized in accordance with section 74 (2) of the Acts
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 21 July 2010 under the Employment Equality Acts. On 4 September 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 received from both sides. In accordance with Section 79 (1) of the Acts and as part of my investigation I proceeded to a hearing on 13 November 2012.
2. COMPLAINANTS' SUBMISSION
2.1 The complainant started working for the respondent in May 1999 in the respondent's Corrugated Division. In March 2008 he was invited to transfer to their Display Division as a Sales Executive under the management of a General Manager (Mr A). The complainant submits that due to maltreatment by the respondent, and principally Mr A, amounting to bullying, harassment and victimisation, he has been unable to work due to work-related stress since 12 November 2009.
2.2 Shortly after he started in the Display Division Mr A introduced a Sales Mentor (Mr B) to the Sales Team. Mr B carried out Psychometric tests on the complainant. He received totally negative feedback from these tests and Mr B went so far as to question the complainant's suitability to carry out his job. The complainant thinks that in this questioning of his abilities Mr B was prompted by senior management. The complainant also submits that Mr B was aware of an unusual amount of information about the complainant's family matters which he had only discussed with Mr A.
2.3 The complainant submits that his child was born on 15 April 2008 and was diagnosed with dislocated hips. He heard of this diagnosis at work and Mr A refused to allow the complainant leave work to be with his wife and child. Later on he had to take a number of days off and that because his phone was not on when in hospital he was in dispute with Mr A, who said his phone should be on at all times. On 15 October 2008 he applied for 4 weeks parental leave for November 2008. He received a negative attitude because he had not applied for the leave six weeks in advance. The application was refused. The complainant submits that he was in a vulnerable position because of the health problems of his infant daughter and whilst the respondent provided some understanding they did not assist him to balance work with family issues, indeed he was put under additional pressure.
2.4 The complainant accepts that he did not meet the ambitious sales targets but submits that he became sick because these issues were not dealt with by positive review and encouragement but through disciplinary meetings. Furthermore, he was micromanaged by Mr A. He constantly received telephone calls asking where he was, he was undermined in front of clients and colleagues were given priority from production staff, making it harder for the complainant to deliver on orders and projects.
2.5 On 23 December 2008 the complainant received an email from Mr A inviting him to a meeting on 5 January 2009 in relation to a complaint made by a large customer. There was a further meeting on 13 January 2009 which also included the Operations Manager (Mr C). The complainant was shocked and distressed to be given a verbal warning "due to his failure to meet the client's requirements and not keeping the management team informed of any difficulties with this project". The complainant submits that any difficulties should have been discussed in a proactive manner to ensure he could consider making positive improvements in the future. Because of this action by the respondent the complainant became anxious about his job security.
2.6 On 24 June 2009 the complainant received an email from Mr A inviting him to a meeting on 29 June 2009. He was not provided with details of the complaint in advance of the meeting; the email merely referred to "unsatisfactory job performance". At the meeting issue was taken with him about his financial results. The complainant accepted the figures presented but clearly these were the result of the worsening financial environment. At the meeting the complainant told Mr A that he had no justifiable grounds to question his performance. Despite this a written warning was issued later that same day. The complainant believed he was being singled out for such treatment and he put Mr A on notice that he believed he was being bullied and harassed and that this investigation was inappropriate and had no regard paid to the health and well being of the complainant. The complainant appealed the written warning to the respondent's Sales Director (Mr D) on 27 July 2009 and set out several factors. An investigation was carried out by the respondent's HR Co-ordinator (Ms E) and on 11 September 2009 she decided that the written warning should be upheld.
2.7 On 9 November 2009 the complainant received an email from Mr A to attend a disciplinary meeting on 16 November 2009 as his sales performance continued to be significantly below his sales forecast. This was a "tipping point" for the complainant who began to suffer anxiety and he has been unable to attend work since 12 November 2009 as a result of stress related illness.
2.8 The complainant submits that the disciplinary proceedings were the primary cause of his illness and amount to harassment and victimisation and the respondent did not consider his mental health which had obviously been deteriorating for some time and no reasonable accommodation was made for this illness.
3. RESPONDENT'S WRITTEN SUBMISSION
3.1 The respondent confirms that the complainant started working for them in 1999 in their corrugated business which was wound down. The complainant was transferred a different Smurfit Kappa plant. Some months later he was offered and accepted a position as a Sales Executive in Smurfit Kappa Display. Before starting this job he met Mr A on a number of occasions to discuss the role and the duties it involved. During 2008 he received 13 days training.
3.2 Mr A led the sales team and they had weekly sales meetings and regular review meetings in relation to sales targets. Separately there were quarterly and bi-annual appraisal meetings between Mr A and individual members of the sales team. In August 2008 a formal appraisal of the complainant's performance took place. By this time Mr A had concerns about the complainant's performance and, in particular, his consistent failure to accurately forecast his sales figures, which is a key element of the role of a sales executive. Areas for improvement were identified to the complainant and further training and support were offered.
3.3 In December 2008 the respondent received a complaint from one of the clients for which the complainant had responsibility. Following an inquiry into the matter the complainant received a verbal warning.
3.4 A further appraisal meeting took place in January 2009. Again areas for improvement were identified to the complainant. To assist him it was agreed that Mr C would work with the complainant on certain key accounts.
3.5 The respondent continued to have serious concerns about the complainant's performance and in June 2009 he was issued with a written warning. This was for continued poor account management and a consistent failure to meet sales forecasts and objectives. The complainant made reference to bullying and harassment during the disciplinary meeting and Mr A informed him of the existence of the respondent's Bullying and Harassment policy and provided him with a copy of it. He informed the complainant that if he wished to make a complaint he should do so to himself or another senior manager. The respondent submits that no complaint was made. The complainant appealed the written warning but his appeal was not upheld.
3.6 On 9 November 2009 Mr A invited the complainant to a further disciplinary meeting in relation to his poor sales performance but the complainant went on sick leave before the meeting took place. The respondent submits that the complainant did not indicate his health was suffering as a consequence of events at work. In November 2009 the complainant went to the company doctor. He went again in February 2010 and April 2010 and the docotor did not consider the complainant fit to return to work.
3.7 The respondent submits that no evidence has been adduced in respect of the complainant on the family status ground. The request for parental leave was refused for clear business reasons.
3.8 The respondent submits that the complainant has failed to adduce any evidence that he is suffering from a disability within the meaning of the acts. The complainant did not inform the respondent that he was suffering from a disability. At no time after he went on sick leave did he not seek accommodation.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 At the hearing the complainant withdrew his claim in relation to the provision of reasonable accommodation, therefore I have to decide if the respondent discriminated against the complainant in relation to conditions of employment, if he was harassed or victimised on the grounds of disability and family status. 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 presented at the hearing.
Disability
4.2 Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified" and in this claim the ground in disability. In relation to the events in this claim the complainant gave no indication to the respondent that he was unwell before he went on sick leave on 12 November 2009. This means they were not aware that was suffering form a disability and as such no discriminatory treatment could have occurred on that ground. The complainant in his written submission and at the hearing of his claim claimed that the treatment he received from the respondent caused him to take sick leave because of a stress-related illness which he claims amounts to a disability within the meaning of the Acts. However, I do not have to decide if this did amount to a disability because the treatment he refers to occurred before he suffered from a disability.
4.3 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. In this case the complainant did not have a disability during the period of his claim. He is therefore unable to establish a prima facie case of discrimination in relation to his claims of harassment, victimisation and the provision of reasonable accommodation.
Family Status
4.4 The complainant contends that the respondent made no allowance for his family situation on three occasions. Firstly, when his child was diagnosed as having dislocated hips and Mr A refused to give him time off to be with his wife and child. Secondly, when he did take time and Mr A made an issue that the complainant's phone was not on all the time and he had turned it off because he was in a hospital. Thirdly, when his application for parental leave was refused. The respondent contends this was for business reasons as they were busy at that time and the complainant did not make any further applications for parental leave.
4.5 Section 6(1) of the Acts which states that: "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". In this claim the ground is family status. I conclude, from the evidence presented, that the respondent would not have treated anyone else in a comparable situation without a family status any differently.
5. DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts I find that:
- the complainant has not established a prima facie case of discriminatory treatment on the disability ground, and
- I find that the complainant has not established a prima facie case of discriminatory treatment on the family status ground.
____________________
Hugh Lonsdale
Equality Officer
17 December 2012