EMPLOYMENT EQUALITY ACTS
DEC - E2012-199
Ms B
(represented by Gilvarry & Associates)
versus
A Community Nursing Home
File reference: EE/2010/818
Date of issue: 28th December 2012
Keywords: Employment Equality Acts, Disability, Depression, Promotion, Harassment, Victimisation, Failure to provide reasonable accommodation, time limits, No prima facie case
Dispute
1.1 The case concerns a claim by Ms B against a Community Nursing Unit run by the HSE. Her claim is that she was discriminated regarding access to promotion on the grounds of disability. She withdrew her complaint on the age ground at the hearing. She also claims that she was harassed and victimised within the meaning of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as 'the Acts']. She also claims the respondent failed to provide appropriate measures for her disability within the meaning of the Acts.
1.2 Through her legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 3rd November 2010. On 10th October 2012, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 24th October 2012 as required by Section 79(1) of the Acts.
Summary of the complainant's case
2.1 The complainant commenced employment in the Community Nursing Unit in 1977. Following a national agreement in 2005, her role was regraded as a Multi-task Attendant. She worked in the Kitchen. She submits that the management of the Community Nursing Unit know that she suffers from depression.
2.2 In June 2010 the chef retired in the Community Nursing Unit. Ms B was offered the consequential Acting-up vacancy. Ms B submits that she should be given the permanent job without doing an interview. She initially accepted the 'Acting up' post. She states that after accepting it, a colleague said to her that afternoon 'Don't even bother going for the interview for the permanent position [named individual] from [named location] is a cert. for that job'. Over the weekend, she submits that this information caused her stress so she went to her GP and obtained a sick certificate. She did not take the Acting-up role.
2.3 While she was out on sick leave, she received a letter asking her to attend the HSE Occupational Health Physician for the area. She submits this was very unfair as she had been working there for so many years. In 2004 there was a breakdown in communications between her and a senior colleague and she submits that the respondent should allow her some leeway because of that.
Summary of the respondent's case
3.1 Ms Z, Director of Nursing for the Community Nursing Unit, offered Ms B the Acting Up vacancy on Friday, 10th June. Ms Z stated at the hearing that she pointed out to Ms B that there would have to be an open competition for the permanent position in common with all public service appointments. Ms Z said that Ms B seemed delighted to have been offered the Acting-Up role.
3.2 It was expected that Ms B would start the Acting Up role the following Monday. However, she did not report to work. When she did not contact the Community Nursing Unit to say she would be absent, the HSE contacted her. That is how the HSE were informed that she would not be taking on the Acting Up role. A temporary employee, who was covering a maternity leave in an other Community Nursing Unit, was drafted in to fill the Acting Up role.
3.3 It is HSE policy that if an employee sends in a medical certificate citing stress, that s(he) is referred to an Occupational Health Physician in order to provide an independent opinion. Ms B attended the relevant doctor on 6th July 2010 and he certified her fit to return to work. She did not return to work at that time. A week later Ms Z phoned to say that, because Ms B was not following the Occupational Health Physician's advice by returning to work, her payment under the sick pay scheme was being withdrawn. Ms Z submits that she also pointed out to Ms B that she had access to the Employee Assistance Service.
3.4 Regarding what happened in 2004, the respondent points out that these events are out of time.
3.5 The respondent denies that they were aware that she suffered from depression. They submit that her medical certificates were generally for minor ailments e.g. stomach upset, colds etc. However, by offering her access to the Occupational Health Physician and the Employment Assistance Service, they were offering her reasonable accommodation.
3.6 The respondent points out that she continues to be employed by them as a multi-task attendant and when the chef is on leave, she takes up her role and gets paid at the appropriate rate.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the complainant suffered discriminatory treatment in relation to access to promotion, whether the respondent failed to provide reasonable accommodation in order to enable her to continue to work with the respondent and whether the complainant was harassed and victimised within the meaning of the Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent.
Time limits
4.3 In the interests of natural justice and legal certainty, I cannot examine the events that occurred in 2004 as they are outside the statutory time limits. Aer Lingus Teoranta -v- the Labour Court provides clear authority that every consequence of an (alleged) act of discrimination cannot be deemed to be a further act of discrimination.
Access to promotion
4.3 Disability is defined in Section 2 of the Acts:
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 form a person without the condition or malfunction
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.
Depression is a disability that falls within subsection (e) of the Acts. It is difficult to ascertain whether the respondent was aware whether the complainant had depression or not. Ms B has been on medication for depression for many years. Ms B submits that she frequently had to take time off to cope with her condition. However, the medical certificates from her GP generally stated minor ailments e.g. Stomach upset, Urinary Tract Infections etc. Only one medical certificate submitted in the course of her employment stated depression. The complainant does not help her case by submitting medical certificates listing ailments other than what was her real condition. However, on the balance of probabilities, I am satisfied that the respondent was aware that she suffered from depression.
4.4 Nevertheless it must be remembered that an employer is not obliged to promote an employee who is not fully competent, capable and available for work so long as reasonable accommodation, in the case of a disability, is provided. Regarding this, Section 16 (1) of the Acts states:
Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ....
(b) is not (or as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking the duties attached to that position having regard to the conditions under which those duties are, or may be required to be, performed.
4.6 Ms B was offered the Acting-Up promotion and initially seemed pleased to take it. However, she foolishly listened to an unsubstantiated rumour and then decided to turn it down. Incidentally, the person named by her colleague did not ultimately obtain the permanent position. Ms B went out on stress- related sick leave because she was not automatically given the permanent role. That is not the way the public service appointments system works. Almost all public service appointments are following a competition. Standards of probity and transparency are necessarily higher when positions are funded by the Exchequer. As a person who has been employed by the State since 1977, she should have been aware of these recruitment and promotion processes.
4.7 The complainant has not established a prima facie case on the grounds of disability regarding access to promotion because I find no link between her disability and either the Acting-Up position nor the permanent one. She was offered the Acting-Up vacancy. When she was unavailable for this work, the respondent had to find somebody else to fulfill this important role (in a temporary capacity) as it is a residential home and service-users have three meals a day there. Ms B did not apply for the permanent role.
Reasonable accommodation
4.8 I will now turn to 'reasonable accommodation'. Section 16 (3) of the Acts states:
3) (a) 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 himself or
herself; [my emphasis]
I am satisfied that the complainant has enjoyed reasonable accommodation over her 35 years of employment with the respondent despite the fact that she did not formally declare her disability to the respondent.
Harassment
4.9 Section 14 (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.10 The complainant submits that the sick-pay scheme being withdrawn from her was harassment on the grounds of disability. After a month out of work on sick-pay (full salary) and after being certified by an independent physician that she was fit to return to work, the complainant did not do so. I do not find the respondent's response of cutting sick-pay to half her salary to be harassment. In fact it is the action of a reasonable employer. Therefore I am not satisfied that that the complainant was harassed on the ground of disability. Therefore this strand of her case cannot succeed.
Victimisation
4.11 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.12 The colloquial meaning of victimisation differs from the statutory meaning in these Acts. The complainant could not identify any adverse treatment by the respondent following her complaint of discrimination. Therefore, she has been unable to establish a prima facie case of victimisation.
Decision
I have concluded my investigation of Ms B's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent has not discriminated against the complainant regarding conditions of employment on the ground of disability
(ii) the respondent has not failed to provide appropriate measures to the complainant
(iii) the complainant was not harassed on the ground of disability.
(iv) the complainant was not victimised within the meaning of the Acts.
Therefore, I find against the complainant.
________________
Orlaith Mannion
Equality Officer