EMPLOYMENT EQUALITY ACTS 1998-2011
DEC - E2012-200
Ms C
(represented by John Sweetman B.L. instructed by Margetson & Greene Solicitors)
versus
A Community Care Centre for People with Disabilities
(represented by Jim Healy, IBEC)
File reference: EE/2009/623
Date of issue: 28th December 2012
Keywords: Employment Equality Acts, Disability, Depression, Failure to provide reasonable accommodation, Victimisation, Discriminatory Dismissal
Dispute
1.1 The case concerns a claim by Ms C against a voluntary body providing services to people with disabilities. Her claim is that she was discriminated against regarding conditions of employment and dismissal on the grounds of disability in terms of 6(2) (g) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as 'the Acts']. She also claims that the respondent failed to provide appropriate measures that would allow the complainant to continue to be employed by them. She also claims victimisation.
1.2 Through her legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on the 20th August 2009. On 31st January 2012, in accordance with his 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 29th February 2012 as required by Section 79(1) of the Acts.
Summary of the complainant's case
2.1 The complainant submits that the respondent demeaned her by unilaterally transferring her to a lesser role.
2.2 The complainant commenced employment as an Independent Living Coordinator on 20th October 2008. She has a BA in Applied Social Studies from St Patrick's College, Carlow. Her role was to assist residents (people with learning difficulties) to develop independent living skills like grooming, money management etc in a semi-independent residence. She submits she enjoyed her work in this role. Six weeks later (1st December 2008) she was called to a meeting where she was told that she was being transferred to House Parent/Social Care Leader at a different residence which entailed more personal care i.e. washing of service-users. She submits that the only reason the respondent did not try to cut her salary is that she had a contract already signed.
2.3 Ms C states that she prefers the 'social care model' where service-users are given more autonomy and the atmosphere is less institutional. She worked a three-day shift in the new role but it made her feel stressed, anxious and depressed. She submits that she had no choice but to go out on sick-leave. She submitted medical certificates for this sick leave.
2.4 She attended the Occupational Heath Specialist as requested by the respondent. In a response to her solicitor, the respondent stated that she was still on probation. She submits that this is incorrect i.e. that she was no longer on probation.
2.5 She submits that the person who took over from her as Independent Living Coordinator was offered the job before the complainant was told that she was being transferred.
Summary of the respondent's case
3.1 The respondent states that its mission is to provide quality, caring and professional service in line with best practice to its clients, to develop their potential with regard to their ability and choice, to facilitate their future participation and integration in the community, to encourage them to voice what they require and especially to safeguard their dignity, equality and confidence.
3.2 The semi-residential unit where Ms C worked as an Independent Living Coordinator opened in October 2008. The respondent emphasised to both staff and service-users that they would continue to be supervised e.g. they were not to socialise outside the residence independently at night.
3.3 On 1st November 2008 a staff member, while on a night out, noticed a residential service-user was involved in a fight in a night club. The security personnel in the nightclub had to intervene. The service-user was drunk. The staff member approached the security personnel and explained the situation. The service-user told the staff member that he had drank five or six pints. He was upset and angry. He also had a cut on his forehead. The following day, the staff member contacted the Deputy Manager about the incident.
3.4 Ms D, Deputy Manager, contacted asked Ms C about the incident. Ms C said she knew nothing about it. She had given the service-user a key and had not asked where he was going or what time he would be home at. He had let himself back in and she was asleep when he returned. The Deputy Manager told her it was a bad judgment call to allow him to a nightclub without supervision and that while the semi-independent residence was a step-down facility, a careful approach was necessary. She also stated that Ms C could ring her any time if she was in doubt about how to handle an issue.
3.5 Ms C was called to a meeting on 1st December 2008 with Ms E the other Deputy Manager. The incident on 1st November was brought up. Ms E reiterated their concerns about the way Ms C handled the situation. The complainant became upset. Ms E said that they knew she worked hard but thought she required more support. For this reason, Ms E informed her that she was being transferred to an other residential home. She was told that she would receive the same salary as well as the same terms and conditions.
3.6 The following day, at the complainant's request, Ms E and Ms D met the complainant and her mother. They outlined again that they did not think she had the necessary skills yet and required development. They emphasised it was not a demotion but a decision they made for valid health and safety concerns for their service-users. The job descriptions are identical for both roles.
3.7 The respondent submits that the terms and conditions of the complainant's contract allow the respondent to relocate Ms C to a lateral position:
The employee's place of work will be the premises of the employer at [named location] or such other premises owned or occupied by the Employer as advised to the Employee from time to time. The Employee will be given as much notice as is reasonably practical or any change in the place of work.
3.8 The complainant worked over the weekend of 5th-8th December 2008 in the other residential house. Ms D met with her afterward to see how she got on. The complainant said she did not like the 'old school type service' in this residence. Ms D pointed out that she could apply for a day service position if one was to become available.
3.9 The following day the Nurse in Charge of the residence met with her. The nurse acknowledged that there was more personal care involved in this residence than the previous one as the service-users had greater needs but disagreed that the social care model was ignored in this setting. The nurse also pointed out that she was responsible for the wellbeing of both staff and service-users and that Ms C could approach her at any time. They also discussed leave arrangements over Christmas and Ms C's request was facilitated.
3.10 The complainant never returned to work. She sent in medical certificates stating 'flu-like illness' on the first one and from then on 'respiratory tract infection' was cited as the reason for her absence. On 19th January 2009 Ms D wrote to her to set up a meeting with her at a mutually convenient time. On 27th January Ms C phoned Ms D to say her solicitor would be in touch. On 30th January, the respondent referred the complainant to Medmark - their Occupational Health Specialist as she had been out on certified sick-leave for over six weeks.
3.11 She attended the Occupational Health Assessment where she said that she was suffering from stress, anxiety and depression. However, the doctor certified as fit to go back to work subject to discussion of the IR/HR issues. She was rostered for work on 9th March 2009. She did not attend work and she refused to attend a meeting regarding her return to workplace. The respondent states that it had no option but to terminate her employment on 6th April 2009.
3.12 The respondent states that Ms C was still on probation when her employment was terminated. There was a clerical error on her contract which said the probationary period was one month but the HR Manager rang her to ask her to amend her contract. The employment handbook states the probationary period was six months. The respondent accepts that the person who took over her position temporarily was told the day before the complainant but that was to ensure continuity of service.
3.13 The respondent submits that the complainant never stated at her pre-employment medical or during her employment that she had suffered from depression. As the provider of services to people with disabilities, the respondent submits that it would be incongruous to discriminate against employees with disabilities. They state that they pride themselves on providing reasonable accomodation to staff to continue to be employed by them. One of the Deputy Managers is in remission from cancer, two care assistants suffer from depression and are being accommodated, a nurse uses a colostomy bag and a driver has diabetes.
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. There are a number of issues for me to decide:
(i) whether the complainant suffered discriminatory treatment in relation to her conditions of employment
(ii) whether the respondent failed to provide reasonable accommodation in order to enable her to retain a position with the respondent
(iii) whether she was discriminatorily dismissed
(iv) whether she was 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.
Definition of disability/Conditions of Employment
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.
It is a rare day that every human being does not experience some stress or anxiety. However, they are not entitled to protection on the disability ground for these ordinary, everyday feelings. Clinical depression is a different matter. It clearly falls within subsection (e) of the above definition. The complainant never declared that she previously had a depressive episode at her pre-employment medical. She submitted medical certificates stating Respiratory Tract Infections for 15.5 weeks when her GP was treating her for depression and she was attending a Counsellor for same. While I accept the complainant's contention that there is a social stigma associated with depression, not declaring it to her employer weakens her case in this Tribunal. However, I am satisfied that the respondent was on notice that the complainant had a disability only when they received the report from the Occupational Health Specialist.
4.4 Neither in the correspondence before the hearing nor in evidence at the hearing, did the complainant acknowledge that she made a mistake in allowing the service-user out to a nightclub where he got drunk and became injured and that she compounded the error by not reporting the incident to a supervisor the following morning. The complainant could have been dismissed for allowing this incident to happen on her watch. Instead, the complainant was allowed retain the same salary and terms and conditions of employment in a different residence. I accept the complainant's contention that the decision was made without consulting her. However, I am also satisfied this was done for valid health and safety reasons especially when it concerns vulnerable adults.
4.5 I accept the complainant's contention that there was a more easygoing atmosphere in the semi-independent residence where she was first employed. I also accept the new role was challenging. However I do not accept it was a demotion as she enjoyed the same salary and other benefits. Neither can she link this treatment to the disability ground as the respondent was not aware she had a disability at this time. Therefore she has failed to establish a prima facie case of discrimination on the ground of disability regarding her conditions of employment.
Reasonable accommodation/appropriate measures
4.6 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]
The respondent was not aware of the complainant's disability until February 2009. At that stage, the complainant had not attended the workplace in three months. The respondent tried to engage with the complainant to enable her to return to work but she did not suggest alternatives or respond in any meaningful way. In fact, the respondent is to be complimented on its efforts to engage with the complainant both before and after they became aware that she had a disability. She had four meetings in December (including the unusual step of allowing her mother to attend one) to ease her transition into her new role. Therefore, no evidence was adduced that respondent failed to provide appropriate measures to enable the complainant to return to work.
Discriminatory Dismissal
4.7 It is common case that the complainant was dismissed by letter on 6th April 2009. While nothing turns on whether the complainant was on probation or not [i.e. if I found the dismissal to be discriminatory, the fact the complainant is on probation would NOT be a defence for the respondent] I accept the respondent's contention (despite the clerical error on her contract) that she was on probation. It must be remembered that an employer is not obliged to retain 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.
4.8 The respondent is entitled to avail of the Section 16 defence - as the complainant was not fully competent, fully capable and fully available for work. The complainant was not available for work from December 2008 until April 2009 although she was certified fit to return to work in February. The respondent made reasonable attempts to accommodate her but she did not engage with them. Therefore, in the circumstances of this case, the complainant is not entitled to succeed in her claim of discriminatory dismissal.
Victimisation
4.9 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.
4.10 The colloquial meaning of victimisation differs from the statutory meaning in these Acts. No credible evidence was adduced of any adverse treatment by the respondent following the complainant's engagement of solicitors or the disclosure of her disability. Therefore, she has been unable to establish a prima facie case of victimisation.
Decision
I have concluded my investigation of Ms C'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 on the grounds of disability regarding conditions of employment
(ii) the respondent has not failed to provide appropriate measures that would allow the complainant to be employed by them
(iii) the respondent did not discriminatorily dismiss the complainant 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