EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012-197
PARTIES
Sophie Harrington
(Represented by Tiernan Lowey BL instructed by Crimmins Howard, Solicitors)
V
Natus Nicolet Ireland Limited
(Represented by John Brennan IBEC)
File Reference: EE/2010/298
Date of Issue: 21st December 2012
Keywords
Employment Equality Acts 1998-2011, Disability - 6(2)(g)), Section 6(1) - less favourable treatment, Section 8 - Conditions of Employment, Section 14A - Harassment, Section 16(3) - failure to provide reasonable accommodation, Section 74(2)- victimisation, Section 85A - prima facie case.
1. Dispute
This dispute concerns a claim by the above named complainant that she was discriminated against by the above named respondent on the disability ground, in terms of Sections 6(1) and 6(2)(g) of the Employment Equality Acts 1998-2011 and contrary to section 8 and section 16(3) of these Acts in relation to her conditions of employment in that she was disciplined by the respondent in relation to her sick leave record. The complainant alleges that the respondent has discriminated against her in that they failed to provide her with reasonable accommodation to take account of her disability. The complainant also claims she was harassed pursuant to Section 14A and victimised pursuant Section 74(2).
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal 20th of April 2010 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011, the Director delegated the case on 10th August, 2012 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 16th November 2010 and from the respondent on the 26th of January 2011. As required by Section 78(1) of the Acts and as part of my investigation, I proceeded to hearing on the 4th September 2012 and the final information was received on the 23 of November 2012.
3. Summary of the Complainant's Case
3.1 The complainant commenced employment with the respondent on the 10th of September 2007 as an incoming/receiver inspector in the quality control section. During 2009 the complainant was absent from work on certified sick leave on two separate occasions. The complainant suffers from asthma and her condition is affected by the presence of dust. There was ongoing construction work in the company for months and in April 2009 it moved closer to where the complainant worked which caused a lot of dust. The complainant said that she reported to the health and safety officer and to HR. There was an attempt to set up an office for her next door but before this happened she went out sick. She was certified as being unable to attend work from the 17th of April 2009 to the 22nd of April 2009 due to an asthmatic reaction to dust.
3.2 In September 2009 the complainant began to suffer from abdominal pain and was admitted to hospital on the 22nd of September and she had an operation on the 25th of September. She had a very large wound which required 23 staples. Soon after the operation she suffered from a serious infection which caused her considerable pain and she was prescribed antibiotics and very strong pain killers. This setback increased the period the complainant was absent on sick leave to 8 weeks from the 22nd of September to the 18th of November 2009 all of which was certified by her doctor. Her GP is also the company doctor and he advised HR that the complainant was fit to return to work initially for four hours per day for two weeks and the respondent agreed to this arrangement. The complainant spoke to the HR manager on her return and she said that she was assured that there was no problem with her absence and the HR manager advised her that if she did not feel well she should come and speak to her.
3.3 The complainant was again on certified sick leave due to tonsillitis on the 25th and 26th of January and on the 2nd of February she had to leave work in the morning time because she was vomiting. The HR Administrator, Ms. A, by letter dated the 9th of February 2010, invited the complainant to attend a disciplinary hearing in connection with her attendance record which was scheduled for the following morning the 10th of February. She was provided with her absenteeism record which indicated that she had a total of 57 days and 3 hours sick absences in a twelve month period. The complainant and a work colleague attended and the respondent was represented by Ms. A and the complainant's supervisor Ms B. The complainant said that she was shocked that there was an issue raised about her sick leave at a disciplinary hearing and she pointed out that her absence was certified and she could not come to work at the time of her illnesses. She said that she was questioned about her absenteeism and told that there was a large backlog and people had to do overtime to cover her work. She said that she felt terrible that other people were put under pressure while she was out. She was asked if she thought that was fair and she said no. She was then asked about her health and if she was up to the job. She was told that they may have to move her to some other area. She was informed that any future absenteeism or sickness would have to come out of her annual leave. The following day she was called to another meeting and given a formal written warning because she was unavailable to attend work for a total of 54 days in 2009 and 2.75 days in 2010. The warning would remain on her file for a year. She was asked to sign the warning and she refused.
3.4 She appealed the decision by letter stating that she had attended the company doctor and had kept in contact with her management while she was out sick and had complied with all the procedures and policies of the company. Following an appeal hearing with the HR manager and the Quality Manager, the sanction was downgraded to a formal verbal warning which would remain on her file for a period of 6 months. At the appeal hearing there was no mention of the backlog but she was told that she had broken her contract of employment because she was not available for work. It was submitted on behalf of the complainant that the written warning was only two steps away from dismissal and was not deserved in the circumstances. The complainant submitted that other people were out sick and they did not received warning like she did. She said that there are consequences for having a warning on her file. The warning remains on her file even after it is spent and can be used against her if another employer was seeking a reference. As a direct consequence of having a disciplinary record because of her sick leave she was informed she would not be getting a bonus or a pay rise in 2010.
4. Summary of the Respondent's Case
4.1 The respondent denies that the complainant was discriminated against on the disability ground in relation to her conditions of employment. The respondent is part of a multi national medical technology company based in Gort in Co Galway and it employs about 100 people there. The complainant commenced employment with the company in September 2007 and she was given a contract of employment and the company handbook which contains the company's sick pay scheme, grievance procedures and the disciplinary procedures. In 2009/2010 the complainant was out sick for a number of different reasons for a total of 57 days. From the 16th to the 20th of February she was out sick for a total of 4 days with a tooth abscess and from the 17th to the 22nd of April she was out for 4 days with asthma. From the 22nd of September to the 19th of November she had a total of 8 weeks absence due to an operation and on her return she worked a half day for two weeks resulting in a further 5 days of sick absence. From the 25th to the 26th of January 2010 she was on certified sick leave due to tonsillitis and she went home sick from work on the 2nd of February because she was vomiting.
4.2 The complainant's sick leave absence was noted by HR and the manager of the area decided that the matter should be taken up with her as her absence was having an impact on the business. The respondent said that they had hoped that the complainant's attendance would have improved after she was certified fit to return to work after her post operative recovery. However two further instances of sick leave unrelated to her previous condition the management felt it was necessary to invoke the disciplinary process. She was invited to a disciplinary hearing with her supervisor Ms. A and the HR officer Ms. B. She was asked if she was aware of the impact that her extended absenteeism had on the business and that it was contributing to a large backlog of work in incoming and receiving and inspection areas. The complainant would not accept that this was the case and said that there was a backlog problem in the area before she went on sick leave in September. In relation to her asthma the respondent said that the complainant told them that she suffered from asthma a number of years ago but had not suffered any attacks in recent years. It was accepted that there was work going on in the area which created dust but when the complainant complained about the dust arrangements were made to move the complainant's desk temporarily and before this happened the complainant went out sick and the doctor certified that she was suffering from asthma. At the disciplinary hearing the complainant was asked about her current health and she said that she was not on any current medication after the operation but she still had some pain and was not feeling 100%. She had to have a further test and she was not sure when it would be scheduled. She said that she was run down after the operation and she was taking supplements to improve this.
4.3 The complainant expressed surprised about the disciplinary hearing and said that she could not understand why it was necessary when the majority of her sick leave was certified. Ms. A explained the impact the backlog was having on the business and it was essential to utilise all the resources available to overcome the backlog of work. Ms B told the complainant that after they had discussed the issues raised at the meeting there would be a further meeting to let her know the outcome of the disciplinary hearing. It was decided that a formal written warning under the disciplinary procedures was the most appropriate sanction for the complainant's absenteeism. This was issued to the complainant on the 11th of February 2010 and the complainant refused to sign it. She then appealed the decision by letter dated the 12th of February 2010. The appeal was heard by the Quality Manager and the HR Manager on the 22nd of February 2010 and the sanction was reduced from a written warning to a formal verbal warning which would remain on the complainant's file for 6 months. The respondent said that they accepted that the complainant's illnesses at the time were genuine and they were never questioning the validity of them. However they were concerned about her attendance record and the requirement as a member of a same team to contribute to the workload. The sick pay scheme in the company provides for 12 weeks pay in any 12 month period and the complainant had exhausted her entitlement by December 2009. Once the complainant returned to work there was no indication from her or her doctor that that she was continuing to suffer from any disability at any stage thereafter. They submitted that they facilitated her return to work by giving her part-time work for two weeks and submit that they provided her with reasonable accommodation in relation to recovery from her operation.
5 Conclusions of the Equality Officer
5.1 The complainant's case is that she was discriminated against on the disability ground in terms of Section 6 (1) and 6 (2) (g) of the Employment Equality Acts, 1998 - 2011, contrary to Section 8 of and 16 those Acts in relation to her conditions of employment when she was disciplined in relation to her sick leave record. She also contends that she was not provided with reasonable accommodation in accordance with section 16 of the Act and that she was victimised contrary to section 74 and harassed contrary to section 14 A. The respondent submits that they were entitled to discipline the complainant because of her absenteeism. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
Section 6 provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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
Act referred to as the ''discriminatory grounds'') which --
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,................"
And
(2) "As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(g) that one is a person with a disability and the other either is
not or is a person with a different disability (in this Act
referred to as ''the disability ground''),"
The definition of disability in Section 2(1) of the Acts is as follows:
''disability'' means --
(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;"
5.2 I am satisfied from the evidence and the medical certificates provided in evidence that the complainant has an asthmatic condition. I find that the condition is a disability within the meaning of the Acts. She also had an operation and during her post operative recovery period she suffered from an infection. I am also satisfied that the complainant is covered by the Act in relation to this period and that she had a disability which was temporary in nature. The complainant's representative referred me to the case of Customer Perception Ltd v Gemma Leydon: Labour Court, [2004] E.L.R.101 where the Labour Court considered the definition of disability under section 2(1) of the Act. I note in that case the Labour Court considered the definition of malfunction and stated as follows:
"It is settled law that where a statue defines its own terms and makes what has been called its own dictionary, a Court or Tribunal may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. Furthermore, if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences used.
Applying these well-known principles of statutory construction, it is clear that the term disability must only be given the meaning ascribed to it by section 2 of the Act. It would be impermissible for the Court to rely upon a definition derived from any other source, including the American authorities to which it was referred by the respondent. Further, in construing the plain language used in this definition, words must be given their ordinary and natural meaning.
Taking the ordinary and natural meaning of the term malfunction, (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition.
For all of the foregoing reasons, the Court has no doubt that the complainant's condition amounted to a disability within the meaning of the Act."
In applying the foregoing reasoning of the Labour Court, I find that the complainants operation and post operative recovery constituted a temporary disability within the meaning of the Acts.
5.3 The next matter I have to consider is whether the complainant has established a prima facie case of discriminatory treatment. Section 85A of the Employment Equality Acts, as amended, sets out the burden of proof necessary to establish discriminatory treatment. It provides "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."
The Labour Court has set out the test for establishing a prima facie case in the case of Mitchell v Southern Health Board [2001] ELR 201. It requires the complainant to prove, in the first instance, a prima facie case of discrimination, that is, primary facts upon which a complainant relies in seeking to establish an inference of discrimination. It is only when this initial burden has been discharged that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.
5.4 In considering the application of Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:
"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination."
The Labour Court went on to say in that case:
"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately be drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."
5.5 The complainant's case is that she was discriminated against on the disability ground in relation to her conditions of employment in that the respondent disciplined her in relation to her sick leave record. Her barrister submitted that she was disciplined wholly or mainly because she suffered from a disability and she was informed that in the event of future absences she would not be entitled to benefit under the sick pay scheme. It was submitted that imposing a disciplinary sanction on the complainant in such circumstances constitutes discriminatory treatment on the disability ground contrary to section 8 of the Acts. The respondent accepts that the complainant had genuine illnesses but states that they are entitled to discipline her in accordance with the disciplinary procedures which provide for a disciplinary sanction in relation to unauthorised absences and poor attendance. The company sick pay scheme provides for 12 weeks payment in any 12 month period and by the end of 2009 the complainant had exhausted her entitlement to sick pay. She was called to a meeting in relation to her sick leave and she would not accept that her absence had any impact on the company and it was for this reason she was issued with a written warning which was reduced to a verbal warning on appeal. They also submitted that she was treated in the same way as another employee who had a similar level of illness.
5.6 I note the respondents disciplinary procedures provide that disciplinary action can be taken for the following offences:
- Persistent bad timekeeping
- Unauthorised absences
- Damage to company property
- Failure to observe company procedures
- abusive behaviour
- unreasonable refusal to follow an instruction issued by a manager or supervisor
- poor attendance
- breach of health and safety procedures.
The sanctions which can be imposed for a breach of the procedures ranged from a verbal warning to written warning and dismissal. In this case, I note that the complainant initially received a written warning because she was unavailable to attend work for 54 days in 2009 and 2.75 days in 2010. On appeal this was reduced to a verbal warning which was active on her file for a period of 6 months and thereafter it was retained on her file as part of her employment record. The complainant submitted in evidence that other employees who had similar sick leave absences to her did not receive any such warning. I note from the records that an employee who had similar periods of sick absences, due to the fact she was involved in a road traffic accident and she also had other periods of sick absences, received a counselling letter and did not receive any warning. It was the respondent's evidence that this employee was undergoing tests in relation to a serious illness and this was the reason she did not receive a disciplinary sanction at that time. Another employee, who suffered a broken leg and was absent for over 50 days did not receive any warning either. The complainant initially received a stage two written warning under the disciplinary procedure. I note that this warning applies to more serious offences. However it was reduced to a stage one verbal warning which applies to minor breaches of the procedures or instances of minor misconduct. In the circumstances, I am satisfied that the complainant has established that she was treated less favourably than other employees who had different disabilities were treated in a comparable situation. I also note that the periods of sick absences for which the complainant was sanctioned under the disciplinary procedures included a period of ten half days which she had permission to take following her return to work after her operation. The disciplinary procedure provides for sanctions in relation to unauthorised absences and this period was authorised by the respondent. I am of the view that another employee who did not have a disability and who had permission to be absent from work for whatever reason would not have been sanction for such an absence. I am of the view that the complainant was treated less favourably than another person would have been treated in comparable circumstances. For the foregoing reasons I find that the complainant has established a prima facie case of discriminatory treatment in relation to her conditions of employment.
5.7 The next matter I have to consider is whether the respondent provided the complainant with reasonable accommodation in accordance with section 16 of the Acts. The complainant disputes that she was provided with reasonable accommodation. The respondent submitted that the complainant was facilitated in her return to work after her operation and she was allowed to work part-time for a period of two weeks.
Section 16 of the Acts provides:
"For the purposes of this Act a person who has a disability
is fully competent to undertake, and fully capable of
undertaking, any duties if the person would be so fully
competent and capable on reasonable accommodation
(in this subsection referred to as ''appropriate
measures'') being provided by the person's employer.
(b) The employer shall take appropriate measures, where
needed in a particular case, to enable a person who has
a disability --
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate
burden on the employer.
(c) In determining whether the measures would impose such
a burden account shall be taken, in particular, of --
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer's
business, and
(iii) the possibility of obtaining public funding or other
assistance.
(4) In subsection (3) --
''appropriate measures'' in relation to a person with a disability --
(a) means effective and practical measures, where needed in a
particular case, to adapt the employer's place of business
to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes
the adaptation of premises and equipment, patterns of
working time, distribution of tasks or the provision of
training or integration resources, but
(c) does not include any treatment, facility or thing that the person
might ordinarily or reasonably provide for herself or
herself;"
5.8 The complainant G.P. who is also the company doctor recommended a return to work after the complainant's surgery should be on a half day basis over a two week period. The company agreed after consultation with the GP and the complainant returned to work on this basis and then resumed full-time after the two weeks. However the two weeks of half days absences were considered by the respondent as sick leave and added to the complainant's sick leave record. I note at 16(4)(b) cited above provides that appropriate measures in relation to a person with a disability includes the adaptation of "patterns of working time". I am satisfied that the complainant was allowed to return to work on a part-time basis for a period of two weeks in order to accommodate her disability. However counting her period of her absence, which amounted to 5 days, as a period of sick leave and sanctioning her under the disciplinary procedures for such does not amount to reasonable accommodation under Section 16. The Act does not provide for such a sanction. I was referred to the Labour Court case of An Employer v A Worker [2005] 16 ELR 159. In considering the import of Section 16 the Labour Court stated:
"Subsection 1(b) is, however, qualified by subs. (3). This subsection provides that a person with a disability is to be regarded as fully capable and fully competent to undertake the duties of a post if with the benefit of special treatment they would be fully capable and fully competent to do so. The subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them.
The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person's attendance hours or to allow them to work partially from home."
5.9 In applying this jurisprudence, I note that a person with a disability may be afforded more favourable treatment than a person without a disability. Under the disciplinary procedures a person without a disability or an illness cannot be disciplined under the disciplinary procedures for availing of part-time work for a limited period with the agreement of the employer. The complainant in availing of reasonable accommodation to facilitate her return to work after her illness and the proper way to treat this absence would have been to disregard it for the purposes of her sick leave record. However as it formed part of her sick leave record she was sanctioned for availing of it. In addition she was not notified at the time the leave was granted that that if she availed of it that it would be classified as sick leave and it may give rise to a sanction under the disciplinary code. I am satisfied therefore that she was treated less favourably than another person without a disability would have been treated in similar circumstances and the treatment of this period of absence did not constitute appropriate measures in accordance with the Acts.
5.10 The complainant also claims that she was harassed on the disability ground contrary to Section 14A of the Acts. Section 14A of the Acts defines harassment as:
"any form of unwanted conduct related to any of the discriminatory grounds, and........ 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."
The Act goes on to give examples of unwanted conduct and states:
(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."
There was no evidence tendered by the complainant to support a complaint of harassment. I find that the complainant has failed to establish a prima facie case of harassment contrary to Section 14A of the Acts.
5.11 The next matter for consideration is victimisation. Section 74(2) provides that:
(2) For the purposes of this Part victimisation occurs where dismissal
or other adverse treatment of an employee by his or her
employer occurs as a reaction to --
(a) a complaint of discrimination made by the employee to the
employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a
complainant,
(d) the work of an employee having been compared with that
of another employee for any of the purposes of this Act
or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under
this Act or the Equal Status Act 2000 or any such repealed
enactment,
(f) an employee having opposed by lawful means an act which
is unlawful under this Act or the said Act of 2000 or
which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any
of the actions mentioned in the preceding paragraphs.
The complainant did not submit any evidence to support a claim of victimisation. I am satisfied that there was no adverse treatment of her as a result of referring this claim. Therefore the complainant has not established a prima facie case of victimisation.
6. DECISION OF THE EQUALITY OFFICER.
(i) On the basis of the foregoing, I find that the respondent discriminated against the complainant on the disability ground in terms of sections 6(1) and 6(2)(g) in relation to her conditions of employment contrary to sections 8 and 16 of the Acts.
(ii) the respondent did not harass the complainant on the disability ground pursuant to sections 6(1) and 6(2)(g) of the Acts and in terms of section 14A of the Acts.
(iii) the respondent did not victimise the complainant on the disability ground in terms of section 74 of the Acts.
6.2 Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay which in this case is €64,000. I consider that an award in the amount of €2,500 is appropriate.
6.3 I therefore, in accordance with my powers under section 82 of the Employment Equality Acts, order the respondent to pay the complainant €2,500 in compensation for the effects of the discriminatory treatment. This figure represents compensation for the infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and therefore it is not taxable.
6.4 Under Section 82(1)(e) I order that the respondent remove the verbal warning from the complainant's HR file.
______________________________
Marian Duffy
Equality Officer
21st December 2012