Employment Equality Acts
Decision DEC-E2012-195
PARTIES
A Software Engineer
(Represented by The Equality Authority)
- V -
A Respondent
File reference: EE/2009/743
Date of issue: 21 December 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Harassment - Disability - Failure to provide appropriate measures (Reasonable Accommodation) - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment and harassment by the respondent on the grounds of his disability in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts and that the respondent failed to provide reasonable accommodation as provided for in Section 16 of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 5 October 2009 under the Employment Equality Acts. On 26 April 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 12 July 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. PRELIMINARY ISSUE - TIME LIMITS
2.1 The respondent contends that the complaint in relation to selection for a performance review in January 2009 is out of time, the complaint having been lodged with the Tribunal on 5 October 2009. I have considered the complainant's submission and the original complaint form and I am satisfied that the complainant's claim refers to undergoing the review as well as being chosen for a performance review. On the basis of the written submissions and oral evidence given at the hearing it is not clear when the result of the review was provided to the complainant other than in summary form in October 2009. Therefore, on balance, I consider that his complainant in relation to the performance review is within time and accordingly, it is within my powers to investigate the complaint under the Acts.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant submitted that he is employed by the respondent and that in June 2008 he was diagnosed with Multiple Sclerosis. This has meant that he had to change his lifestyle completely and also that he cannot work more than his contracted 37.5 hours per week. The complainant also submitted that it has seriously impacted on his punctuality.
3.2 The complainant submitted that he spoke with the respondent about the effects of his disability on his working performance and specifically requested that he be reasonably accommodated by being allowed to start his working day at 10.30am - the respondent operates a flexi-working policy up until 10am however, the complainant wanted an exception to be made on his behalf because of his disability.
3.3 The complainant submitted that the respondent operates a bonus payments scheme and that he only ever once received a bonus. The complainant further submitted that he was told that the scheme operates as follows "you come in, work your hours, get your salary. You come in and do over and above that, you get a bonus". The complainant submitted that his disability does not allow him to do more than the contracted hours and therefore he is unable to work the extra hours that may satisfy this bonus scheme requirement.
3.4 The complainant submitted that he believes that he was being harassed as a result of his disability in that the company called for a performance review of his work from 21 January 2009 to 6 April 2009. He believes that he was selected for this performance review as a result of his time keeping and because of his request that he be allowed to work from 10.30am onwards. This performance review caused him considerable stress and 'exasperated' (sic) his symptoms. As part of that review process, a meeting was held and the minutes note that "it was suggested that if he can currently be in the office by 10.30 everyday that he should be able to change his routine slightly to be in the office for 10am". The review process was left open over the summer. In response to contact initiated by the complainant's representative in September 2009, the respondent indicated that they were willing to amend the complainant's core flexitime hours.
3.5 The complainant submitted that the annual review was completed on 30 September 2009 and that the complainant was informed that the respondent was extremely happy with his work performance.
3.6 The complainant is seeking compensation and also seeking the Equality Officer to direct the respondent to adopt a code of practice that would include provision for the reasonable accommodation of persons with disabilities.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent denies each of the allegations of discrimination.
4.2 The respondent submitted that it had at all material times engaged with the complainant and endeavoured to accommodate his needs. The respondent submitted that it has agreed to alter his working hours to enable him to begin at 10.30 and that this aspect of the complaint is moot.
4.3 The respondent submitted that there is no automatic right, contractual or otherwise, to a payment of a bonus. Any bonus is paid entirely at it's discretion, and takes into account a number of factors including individual performance and the general performance of the company itself.
4.4 The respondent submitted that the complainant's claim in respect of the performance review is outside the statutory time-limits proscribed in Section 77 of the Acts. The decision that the complainant should be subject to a performance review was taken on 21 January 2009, this was a once off decision and therefore any complaint in relation thereto should have been made by 20 July 2009.
4.5 The respondent submitted that without prejudice to the foregoing, the complainant's performance review did not constitute discrimination and/or harassment. The respondent further submitted that employees are regularly subjected to performance reviews which it believes form an integral part of maintaining the level of service given by employees.
5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment and a failure to provide reasonable accommodation on grounds of his disability, in terms of Sections 6 and 16 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 At the start of the hearing the complainant confirmed that he has been diagnosed with Multiple Sclerosis (MS) and it is on this basis that he is grounding his complaint. The respondent did not contest that MS comes within the definition of disability as laid out in Section 2 of the Acts.
5.4 Section 2 of the Acts defines disability as
(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;
I am satisfied that MS comes within the above definition of disability and that, on the basis of the complainant's oral evidence, the complainant had such a diagnosis.
5.5 However, I note from the evidence given by both parties at the hearing that the complainant never provided medical evidence of his diagnosis nor was he asked to provide the respondent with such. In addition, the complainant was never asked to attend a company medical.
5.6 This complaint can be subdivided into three constituent parts: (i) the failure to provide appropriate measures (reasonable accommodation) in respect of the complainant's hours of attendance, specifically his daily start time; (ii) harassment - that the complainant was chosen for, and subjected to, a performance review; and (iii) discriminatory treatment - the refusal to pay the complainant an annual bonus. It is proposed to deal with each part in turn:
Appropriate measures - failure to provide reasonable accommodation
5.7 During the course of this investigation, a number of cases heard in this jurisdiction were opened to the Equality Officer. In particular, the complainant cited the Labour Court cases of "A Health and Fitness Club and A Worker" (EED037) and "A Government Department v An Employer" (EDA062). In relation to the latter case the complainant suggested the Labour Court considered discrimination on the grounds of disability and found that the respondent must prove on the balance of probabilities that the rejection of the complainant was in no sense whatsoever on grounds of disability. In relation to the former case the complainant cited a number of paragraphs relating to a two stage enquiry laid down by that court (and subsequently upheld by the Circuit Court).
5.8 As these cases were opened to me regarding the generality of the complaint rather than relating to specific points, I have considered both cases in a holistic manner and how they relate to the case in hand. I note that EED037 differs from the instant case as it relates to the decision of an employer to dismiss an employee for her 'unsuitability' for a given position rather than a failure to provide reasonable accommodation as in the instant case. Case EDA062 relates to a situation where the respondent denied the existence of the disability or rather that the alleged disability did no fall within the definition of Section 2 of the Acts. However I do note that the Court stated, in alia, that "the court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution"
5.9 The respondent in turn cited this Tribunal's cases of Mr D vs A Government Department (DEC-E2008-011) wherein the Equality Officer referring to Section 16 of the Acts, stated that "the purpose of this provision in the legislation is to facilitate the employment of persons with disabilities where with reasonable accommodation the disabled person can carry out all the duties of the role" and when referring to that complainant seeking reasonable accommodation stated that "It is my view that the onus was on the complainant to support his application for reasonable accommodation with medical or other appropriate evidence outlining the reason for the request for the accommodation and the nature of the accommodation required to enable the complainant to be fully competent and capable of undertaking the duties of the position".
5.10 In the instant case, the complainant did not provide any medical evidence to the respondent regarding the existence of his disability or of the need for his employer to provide him with reasonable accommodation in order to fulfill the duties of his role. From the oral evidence given at the hearing, the complainant simply stated (in January 2009) that his illness gave rise to difficulties in him getting into the office before 10.30am. Evidence was given (both written and oral) that the respondent suggested to him that if he can currently be in the office by 10.30am everyday, that he should be able to change his routine slightly to be in the office for 10am. Furthermore oral evidence was given by the respondent that since that time, the complainant has never been late and that even when it eventually acquiesced to this request (in October 2009) the complainant has never availed of this accommodation. This evidence was not contested by the complainant.
5.11 In general, I am in agreement with the Equality Officer in Mr D vs A Government Department wherein she stated that in her view there is an onus on a complainant to support a request for reasonable accommodation with medical or other appropriate evidence. Not all disabilities require reasonable accommodation and the necessity for reasonable accommodation, where it exists, may change and vary over time, according to the circumstances of any given employee and their disability vis-a-vis their job. Therefore it is important that a person, who contends that they are not fully competent to undertake their duties, and is seeking appropriate measures to enable them to be fully competent, must support that request to some degree with evidence. Otherwise such a request may fall into the realm of seeking tolerance for a disability rather than requiring appropriate measures to enable a person to be fully competent to undertake the duties relevant to a particular position.
5.12 Having considered all the evidence in this case, I consider that the complainant has failed to establish that he required appropriate measures in order to be competent to fulfill the requirements of his position such as to oblige the respondent to provide reasonable accommodation. Neither the complainant nor the respondent had ever contended that the complainant was not fully capable of undertaking his role. Accordingly, I do not find that the complainant has established facts from a failure to provide appropriate measures has been established and this element of the complaint must fail.
5.13 Nonetheless, I note the decisions of the Labour Court and consider it to be best practice that an employer who is informed of the existence of a disability that may fall within the provisions of the Acts, should seek to ascertain the extent of such a disability. Accordingly, I recommend that the respondent ascertain the extent of the disability notified to it by the complainant.
Harassment - subjecting the complainant to a performance review
5.14 The complainant stated that he was chosen for, and subjected to, a performance review on the basis that he has a disability, and arising from that that he sought to come in from 10.30am onwards. The complainant contends that this amounts to harassment on the race ground.
5.15 During the hearing, the complainant admitted that his performance was not up to standard but argued that where his performance was poor this was the fault of the software/tools he had been provided with to undertake the various tasks assigned to him. The respondent's evidence was that a number of people who had poor performance were actively managed through the performance review system, not just the complainant.
5.16 The respondent stated that performance reviews can take from 15 minutes up to one hour and that review periods vary from about a month at the shortest end to almost a year in one case. The complainant's review period lasted for four months at which time the review came to an end.
5.17 Section 14A (7) (a) of the Acts, inter alia, defines harassment as
"any form of unwanted conduct related to any of the discriminatory grounds ... being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person"
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
5.18 Although the results of the performance review do to not seem to have been adequately communicated to the complainant, in light of his admission that his performance was in question, it is difficult to see how the respondents decision to put the complainant's performance under review amounts to harassment, as defined by the Acts. Furthermore, given that a number of individuals were subjected to performance reviews, it is also difficult to link the complainant's selection for a performance review to his disability, therefore this element of the complaint must fail.
Discriminatory Treatment - the refusal to pay the complainant an annual bonus
5.19 The respondent gave evidence that under the bonus scheme, 60% of the bonus fund was allocated to the top performing 20% of employees. Thereafter the remaining 40% was divided amongst the remaining employees who were deemed to be performing normally. Any employee who was deemed to be underperforming was not paid a bonus. The respondent went on to state that during the timeframe in question three such employees were not paid a bonus.
5.20 Having regard to the foregoing, I am not satisfied that the complainant has established facts from which it can be determined that he was less favourably treated than others on the basis of his disability. As the complainant has not established facts from which discrimination may be inferred, the burden of proof shift does not come to rest on the respondent and this element of the complaint must fail.
6. RECOMMENDATION
6.1 I recommend that the respondent ascertain the extent of the disability notified to it by the complainant.
7. DECISION
7.1 Having considered all the written and oral evidence presented to me, I find that the complainant has not established that the respondent has failed to provide appropriate measures (reasonable accommodation) and this element of the complaint fails.
7.2 Having considered all the written and oral evidence presented to me, I find that the complainant has not established that he was subjected to harassment as defined in the Acts and this element of the complaint fails.
7.3 Having considered all the written and oral evidence presented to me, I find that the complainant has not established that he was subjected to discriminatory treatment and this element of the complaint fails.
Conor Stokes
Equality Officer
21 December 2012