EDA122

Position of the Parties

The Complainant

In evidence the Complainant told the Court that he commenced employment with the Respondent in May 2006 as a temporary caretaker. He said that in February 2007 he was interviewed for a permanent post. He continued working in that post until May 2009 when he ceased working due to illness. He resigned from his employment in August 2011.

At interview the Complainant told the interview panel that he was an insulin dependent diabetic. Shortly after the interview he received a telephone call from the Principal of the School and he was offered the job. According to the Complainant at the commencement of the employment he had an excellent working relationship with the Principal. His duties involved opening the School in the morning and checking for danger etc. He later took on the task of putting out the bins although this was not a requirement of his job. The Court was told that he voluntarily took on many other tasks such as plumbing and electrical work. According to the Complainant he had agreed with the Principal that, in return for performing these additional tasks, he would get extra holidays in the summer.

The Complainant told the Court that he is required to check his blood sugar levels periodically during the day and to administer insulin. He explained to the Court what that involved. He said that he has to administer insulin into his thigh and required privacy in so doing.

On his first day at work in the School the Complainant was shown the caretaker’s room and he was given a key to the door of that room. There were two keys; one retained for himself and another for the Principal. The Complainant used this room to store his insulin and to administer the insulin as required. The room contained a large metal cabinet with a lock which was used to store the insulin and the other equipment used by the Complainant in connection with his condition.

According to the Complainant, the working relationship between himself and the Principal continued as normal until about mid-2008. The Complainant recalled that in or about June 2008 the Principal asked him to install new radiators in the School. The Complainant said that in order to undertake that work he would require skilled help. The Principal offered to obtain the services of the School Secretary’s father. The Complainant said that he did not believe that this man would be suitable for the work involved and he informed the Principal accordingly. He asked the Principal to hire a tradesman but she said that that would be too costly. The Complainant told the Principal said that he would be unable to do what he was asked. It was the Complainant’s evidence that the Principal became angry at his response. The next day he was given an envelope containing a contract of employment and he was asked to sign it. He refused to sign the contract as he had difficulties with its content.

The Complainant said that because of his medical condition he was required to attend for out-patient treatment in hospital. The Principal insisted that he obtain proof of attendance at the hospital. None of the teaching staff of the School were required to provide evidence of attendance at medical or hospital appointments.

The Complainant went on to say that he regarded the manner of his treatment by the Principal as bullying and he made a formal complaint in that regard to the Respondent. He wrote to all members of Board of Management setting out his grievances but received no response. He then sent reminders to the Board. He also corresponded with the Chairperson of the Board of Management of the Respondent, the Archbishop of Dublin (who is patron of the Respondent) and the Minister for Education and Skills in relation to his grievances. The Complainant contends that his complaints of bullying were never dealt with. He then referred his grievances to a Rights Commissioner under the Industrial Relations Acts 1946 -2004. The Rights Commissioner recommended that the bullying complaint be investigated and that the Complainant be issued with a contract of employment. The Complainant said that when this Recommendation was issued he felt that something was happening.

The Complainant told the Court that in or about March 2009 the Principal told him that the ‘caretaker’s’ room, which he had used (described as room R09) was to be used for other purposes and that he was being allocated another room (R46). The Complainant said that he accepted that decision. He asked for a key to the door of room R46 and was told that there was no key for that room. According to the Complainant he told the Principal that he needed a secure place to store his insulin and to administer it in privacy. He said that the Principal told him that he could use the toilet to inject himself.

The Complainant said that apart from his insulin and related equipment he kept tools in the room such as chisels and other sharp implements. He pointed out that these tools could be dangerous if they came into the possession of children. He also said that he could not use the toilet to inject for hygiene reasons. The Complainant went on to tell the Court that he tried to go to work without taking insulin during the day. He went to his Doctor who said that this situation was intolerable and that he should come out of work.

The Complainant returned to the complaint which he had referred to a Rights Commissioner. The Rights Commissioner issued his Recommendation in November 2009 in which he recommended that the complaint of bullying be investigated and that the Complainant be issued with a written contract of employment. Following the issuance of the Rights Commissioner’s Recommendation he received a letter, dated 19^thNovember 2009, from the Chairman of the Board of Management, asking when he would return to work and raising questions in relation to his bullying complaints. The Complainant replied to the Chairman of the Board by letter dated 4^thDecember 2009. He advised the Chairman that he proposed returning to work on 7^thJanuary 2010. He went on to set out the history of his correspondence relating to his bullying complaint and asking that it be dealt with.

The Complainant said that following his letter of 4^thDecember 2009, giving his proposed return date, he was told by the Principal that the Respondent required him to attend a nominated Consultant Psychiatrist before he could return to work. The Principal subsequently wrote to the Complainant telling him that he should attend a Dr O'C for examination. For the purpose of this examination he was requested to authorise the release of his medical records to Dr O’C. The Complainant told the Court that he was not prepared to authorise the release of these records. The Complainant then outlined to the Court the circumstances in which this occurred. He said that he had received a swift-mail letter containing a waiver of his medical confidentiality. He did not sign the waiver. The Complainant subsequently met with Dr O'C. He told Dr O’C that he would not agree to waive his confidentiality. He said that he had a second interview with Dr O'C at which he was asked if he had been instructed by the Respondent to hand over his medical notes. He again refused to authorise the release of his records because he had not received satisfactory assurances concerning the use to which these records would be put if released.

The Court was told that the Respondent then arranged for him to be seen by Dr M, another Consultant Psychiatrist. He attended Dr M but did not consent to the release of his medical records for the reason previously stated. The Complainant told the Court that he received a copy of Dr M’s report, in March 2011, under cover of a letter from Solicitors acting from the Respondent. He said that in this covering letter he was threatened with disciplinary action arising from the content of the report.

In cross-examination the Complainant agreed that he disclosed at interview that he was insulin-dependent. However, he did not explain what that entailed. He agreed that he was happy with the facilities with which he was provided in room R09. He said that this was a private room. It was put to the Complainant that others could use that room. The Complainant said that he allowed others to smoke in his room but that it was not otherwise used except for his purposes. He also agreed that the handle on the door of this room was broken. He said that a scissors was used to open the door in conjunction with a key. He said that if others wanted to use this room they would come to him and get the key. The School Secretary regularly used the room to smoke and she would come to him and get his key. The only other keys were in the Secretary's office. The witness said that he had access to a limited number of keys; to the front door, front gate and to room R09.

It was put to the Complainant that he had told the Respondent that he was better qualified to teach than to undertake caretaking duties. It was also put to him that he demanded a written contract of employment but when such a contract was proffered he refused to sign the contract.

The Complainant was referred to his letter of 18th August 2008 to the Principal (which was opened to the Court by Counsel). He said that the purpose of the letter was to point out the background to the breakdown in his relationship with the Principal. It was put to him that the letter did not raise any issue about his disability or discrimination on that ground. The Complainant said that the facility to administer his insulin was not withdrawn until the following May. He said that when he wrote the letter the Principal was on holidays. When she came back he had the letter drafted and hand delivered it on 8^thAugust 2008. The Complainant referred to a reminder which he sent to the Principal dated 22^ndSeptember 2008 and the response from the Principal dated 20^thOctober 2008, both of which were put in evidence.

The Complainant agreed with Counsel that in or about August 2008 he was informed that the Respondent had received approval to acquire new chairs. He further agreed that he was informed that room R09 would be needed to store these new chairs. He also agreed that his proposed relocation was discussed at a meeting with his then trade union, IMPACT, held in January 2009. At that meeting there was also a discussion on his contract of employment. The Complainant said that he had issues with the draft contract proffered about whether he was permanent or on probation. He agreed that other matters were also discussed at this meeting and that he sought additional facilities including access to hot water and health and safety issues. There was also some discussion around how performance related issues should be dealt with. In that regard the Complainant said that he wanted a process put in place. The Complainant said that it was suggested that there be a review after the contract was signed. The Complainant agreed that he asked for a written contract but then refused to sign one when proffered. He said that he was unhappy with the contract proffered.

The Complainant agreed that following the meeting involving his Union in January, 2009 he was absent until March. He said that on his return he was offered the use of R46 rather than room R09. At that time he raised issues around the storage of his insulin and other equipment. The Complainant understood that he would have a private place to inject himself. He said that room R46 was not private as he was not provided with a key to the door. It was put it to him that there was no key. In relation to the storage of his equipment he accepted that he was offered a petty cash-box which could be accommodated on a shelf about 6 feet above the ground. He was also offered a facility to use a fridge located in the staffroom. The Complainant said that he was told that he could inject in his car.

The Complainant agreed that he rejected all of these options on what he regarded as safety reasons or reasons relating to privacy. It was put to him that the shelf on which it was suggested that he could store his equipment in room R46 was at a height that children could not reach. The witness disagreed. He was asked the difference between room R09 and R46. He replied that he had a key to room R09 but was not being provided with a key to room R46. It was put to the Complainant that others were in and out of room R09 all the time. The Complainant disagreed.

It was put to the Complainant that the first time he raised issues about privacy was in his letter to the Archbishop of Dublin. The Complainant said that he told the Principal that he had to sit down and inject himself with his trousers down.

In relation to the suggestion that he could use the staff toilets, it was put to the Complainant that these facilities were used by only four people. The Complainant said that he would not use the toilets for reasons of hygiene.

In reference to room R46 the Complainant said that this was located beside what he referred to as “the sin bin room” where children who were referred to the Principal congregated. He said that the door was more often open than it was closed. It was put to him that there is no “sin bin” in the School.

The Complainant was referred to a letter from the Chairman of the Respondent asking him to obtain confirmation from his Consultant concerning the requirements regarding the storage of insulin, how often he is required to take insulin during the School day and the facilities required for that purpose. The Complainant said that he requested this confirmation from his Consultant but was told to by the Consultant to reply himself. He replied by letter of 2nd April 2009. The Complainant was referred to a letter from the Respondent dated 22^ndApril 2009 in which it was pointed out that this was unsatisfactory and that confirmation from his Doctor was required. The Complainant agreed that the Respondent wrote again by letter dated 7^thMay 2009 requesting confirmation on these points. The Complainant was referred to a letter dated 19th September 2009 from his Consultant specifying that the conditions for storage are not very stringent.

The Complainant agreed that a meeting was held in the School with IMPACT in April 2009. There was a general discussion at that meeting on matters relating to the Complainant’s conditions of employment but that the issue concerning his disability was not raised.

On his medical appointments the Complainant told the Court that he was put on a course of injections for an eye condition. He said that he went in to School, opened up, then he went to the medical appointments. He said that he was unable to come back to work after that treatment. According to the Complainant the Principal required him to obtain proof that he had attended medical appointments and the time he spent in the hospital. The Complainant said that other members of staff were not subject to this requirement.

The Respondent

Evidence was given on behalf of the Respondent by the Principal of the Respondent School. The witness told the Court that she had held that post since 2004.

The Principal agreed that the Complainant was originally employed as caretaker in a temporary capacity in 2006 and was later appointed in to a permanent post in early February 2007. The witness told the Court that she had been informed by the Complainant of his medical condition but had not been informed of what that entailed.

According to the witness the working relationship with between her and the Complainant was satisfactory while he was employed in a temporary capacity but it deteriorated significantly shortly after he was appointed permanently. It was the Principal’s evidence that the breakdown in the employment relationship stemmed from a dispute concerning the holidays to which the Complainant was entitled. The witness recalled that the Complainant was on sick leave and returned to work in or about June 2008. The witness said that there was some work involving the maintenance of the building that could only be undertaken during the summer when the School was closed. The witness discussed with the Complainant what was required of him during that period. She said that the Complainant told her that he would only be available for two weeks during the holiday period. The witness told the Complainant that while she was prepared to be flexible in when this work could be undertaken he was not entitled to take the School holidays off.

According to the witness, from that point onwards the Complainant became extremely difficult to manage and that he started to make what she regarded as outrageous allegations concerning his treatment by the witness including accusing her of bullying. She said that the Complainant had written to her making these allegations and that he had also written to the Chairman of her Board of Management and to the Archbishop of Dublin to the same effect. The Court was told that it became impossible to get the Complainant to do any work without an argument and her instructions were constantly challenged by the Complainant who appeared to have fixed views of what his duties entailed and when he was required to attend at work.

The witness said that she later became aware that the Complainant had joined the IMPACT trade union and she was delighted at this development. She said that she saw it as an opportunity to obtain clarity in relation to the Complainant’s employment conditions and to try and restore some normality in the working relationship.

The Principal recalled that meetings were held with the Union in January 2009 in relation to the Complainant’s working conditions. The question of providing the Complainant with a written contract of employment setting out his terms and conditions of employment was the principal issue discussed. The witness said that she found this meeting positive and she regarded the input of the Union Official as very helpful. She understood that agreement was reached on the matters dealt with at these meetings and that the Complainant would be provided with a contract which he would sign. At that time approval had been obtained by the Respondent to acquire a number of new chairs and it was anticipated that they would be delivered in or about the following March. The witness indicated to the Union that the chairs would be stored in the room then used by the Complainant and that he would be required to relocate. No issue was raised in relation to this proposal.

The witness went on to describe the events surrounding the relocation of the Complainant after the chairs were delivered in March 2009. At that time the Complainant was told that he was being assigned room R46. He raised an issue about storing insulin. The witness suggested that it be stored in a fridge located in the staffroom. This was rejected by the Complainant. The witness then suggested that the Complainant could be provided with a cash box, which could be locked and stored on a shelf located in the room some 6ft from the ground. He accepted the latter suggestion but reluctantly.

It was the Principal’s evidence that the Complainant did not raise any issue concerning the absence of privacy in room R46 at that time. She first became aware of this issue when she received a copy of a letter that the Complainant had sent to the Archbishop of Dublin. The witness took advice on how she should respond to this complaint. She consulted a nurse and the Diabetes Federation. She also consulted her Deputy Principal who had a family connection with this disease. As a result of the advice received the witness considered it desirable to ask the Complainant to obtain confirmation from his Consultant as to his needs in relation to his condition. A letter was sent to the Complainant asking him to obtain such confirmation. A reply was subsequently received from the Complainant personally. He was advised that medical confirmation was required. A letter was subsequently received from the Complainant’s Consultant, in September 2009, stating,inter alia,that the requirements for storing insulin were not very stringent.

Turning to the security of room R46, the witness gave it as her opinion that this room was more secure than the room previously used by the Complainant. She said that door handle on room R09 was broken and it could be accessed by using a scissors. She said that room R46 had an outside bolt fitted on the top of the door which could not be reached by children. The room was located near to the Principal’s office and could be seen from there. The witness said that there was no ‘sin bin’ in the School and children were rarely sent to her office. The Court was told that staff members often went to room R09 in order to smoke. The witness said that the Complainant was frequently absent from work and she often went to room R09 to obtain equipment that was stored there. She said that she accessed the room using her car key. The witness believed that the Complainant could have temporarily secured the door to room R46 if necessary. She said that when he was painting classrooms he secured the door using a wedge.

The witness was asked why she had not provided the Complainant with a key for room R46. She said that she was concerned that the Complainant should not have access to a locked room for health and safety reasons as it was possible that his condition could cause him to lose consciousness. The witness said that she had formed this view as a result of advice that she had taken from the sources which she had consulted.

With regard to the Complainant’s medical appointments, the witness told the Court that she had never required confirmation of the time that the Complainant spent attending hospital. She merely required notice in advance of when he would be absent to attend these appointments. She said that unlike the teaching staff she could not assign any other staff member to undertake the Complainant’s duties when he was absent and she needed advance notice so as to make alternative arrangements to cover those duties. The witness recalled one incident in which she had to leave an important meeting to attend to a matter that should have been attended to by the caretaker. The witness said that there was the possibility of obtaining the services of a temporary caretaker but this could only be done if she had advance notice of when this requirement would arise. The Principal told the Court that this matter had been raised by the Complainant’s trade union and she agreed that the requirement to give advance notice of medical appointments in writing would be extended to all staff. Such a policy was then put in place.

According to the witness a range of employment related issues were raised by the Complainant’s trade union on his behalf but the question of private facilities in which to administer insulin or allegations of discrimination were never raised by the Union. Nor was any allegation of discrimination raised in the correspondence sent by the Complainant to her or the other parties with whom he corresponded in relation to his employment.

The Respondent was informed of the Complainant’s complaint of discrimination when it received notice of his claim from the Equality Tribunal by letter dated 2^ndApril 2009.

The Court was told that the Complainant resigned from his employment with the Respondent in August 2011.

In cross-examination the Principal accepted that room R09, which she had described as a storeroom had a notice over the door describing it as the caretaker’s room. The witness also agreed that when he was informed of his proposed move to room R46, the Complainant did not object. The witness repeated that she did not provide the Complainant with a key to room R46 for health and safety reasons. The witness was referred to a letter from the Chairman of the Respondent which referred to the Complainant’s requirements for taking insulin. The witness said that the Board of Management were trying to assertion from the Complainant’s Consultant what he needed in order to deal with his condition. It was put to the witness that the Consultant had also referred to the Complainant’s need for privacy while administering insulin. The witness accepted that but said that room R46 had the same level of privacy as room R09.

The witness was referred to certificates of attendance at the hospital furnished by the Complainant to the Respondent. The witness insisted that she had not asked for certificates of attendance but only for advance written notification of the appointments.

The witness was asked to explain the reason for the decision not to allow the Complainant return to work following the issuance of the Rights Commissioner’s Recommendation in December 2009. The Chairman of the Board of the Respondent had requested the Complainant to indicate a return date which he subsequently gave as 7^thJanuary 2010. The witness said that because of the length of his absence and the general description of his illness given in the medical certificates furnished it was considered desirable to have him independently assessed so as to assure the Respondent that he was fit to resume work. The witness said that the Complainant was certified as suffering from stress and the Respondent considered it necessary to ascertain what was causing that condition and how it could be avoided.


The witness said that it had been decided to refer the Complainant to Dr O'C, who is a Consultant Psychiatrist. That decision was taken by the Board of Management. The witness confirmed that she was party to that decision. The witness agreed that before going to the nominated Doctor the Complainant was required to waive medical confidentiality. It put to the witness that there was no need for the Complainant to be referred to a Psychiatrist at that stage and that it was the Complainant’s view that the course of action embarked upon by the Respondent was a contrivance to drive him out of his employment. The witness denied that suggestion.

The Principal confirmed that it was envisaged that the report of Dr O’C would be made available to the Board of Management of the Respondent. The Principal told the Court that she typed the briefing notes prepared for Dr. O’C but she had not prepared them. In the event, Dr O'C did not report as he was unable to make an assessment of the Complainant’s condition without access to his medical history.

The Court was told that the Complainant resigned from IMPACT and joined another union- TEEU-which sought to represent him. There were difficulties in dealing with this union as the Respondent was told that it had no negotiating rights for caretakers in Schools. The ICTU then became involved and meetings were held with a Senior Official of Congress and the General Secretary of the TEEU. The Principal said that she again found this intervention very helpful. It was agreed with the TEEU and ICTU that another Consultant Psychiatrist, Dr M, would be appointed to undertake an assessment and report to the Respondent. However, while Dr. M did report to the Respondent, he could not provide an assessment of the Complainant’s condition because of the Complainant’s failure to cooperate with the assessment. The Complainant was informed that his failure to cooperate in that regard would be treated as warranting investigation under the Respondent’s disciplinary procedure.

Evidence was given on behalf of the Respondent by Mr. C. This witness told the Court that he is a Consultant who undertakes some work for the Dublin Archdiocese. He said that he was asked to assist the Respondent in dealing with employment related issues involving an individual employee. He was told that there were issues about the employee’s contract of employment.

The witness told the Court that he attended a meeting in early January 2009 involving the Complainant and his then union representatives. A number of issues were discussed in relation to difficulties in the working relationship between the Complainant and the Respondent. Mr. C recalled that the first meeting was taken up with issues in relation to the contract. Another meeting was held two weeks later. At this meeting the Complainant raised issues about health and safety. There were other issues concerning how work would be undertaken and when this would be reviewed.

The witness had no further involvement with the Respondent for some time. He had heard that the contract was never signed but he was not too concerned about that as he was satisfied that the Respondent had a right to determine the Complainant’s terms and conditions of employment and had a right to direct him in relation to the duties of his employment. The witness later heard that the Complainant was on sick leave and that certain employment- related issues had been referred to a Rights Commissioner by the Complainant.

The witness was later invited to sit on the Board of Management of the Respondent so as to advise it in certain matters in which formalities had to be observed. The witness was a member of the Board of Management when the question of referring the Complainant for an independent medical assessment arose. There was a reference in the medical certificates submitted by the Complainant to suggest that he was suffering from stress but there was an absence of detail on the cause of that condition. The referral was to obtain evidence about what was causing the condition and how the employer should deal with it. He advised the School that they would need to know the cause of this condition so as to protect their position.

The witness told the Court that he attended a meeting involving officials of ICTU and TEEU, representing the Complainant at which this matter was discussed. Terms were agreed at that meeting on which the Complainant would attend the medical assessment required by the Respondent.

Asked if other matters were raised at that meeting, the witness said that reference was made to the Rights Commissioner’s Recommendation. He was told that a bullying complaint had been made and a question was raised as to why that had not been death with. The witness said that a number of reasons were given as to why an investigation, as recommended by the Rights Commissioner, had not taken place. It was the witness’s recollection that the Complainant wanted a disciplinary hearing before the other investigation should take place. The witness also recalled that an issue had been raised about the Complainant having to give notice in writing of his medical appointments. The witness said that the Respondent’s position was that because of the different circumstances affecting the Complainant’s duties notice of his intended absences was required. The witness said that no issue concerning discrimination had been raised at the meetings which he attended.

Ms F, former Deputy Principal of the Respondent, gave evidence. Ms F told the Court that she had been consulted by the Principal in relation to the issues raised by the Complainant concerning facilities for administering insulin. The witness said that she had extensive knowledge of the requirements of an insulin-dependent diabetic as her husband suffered from that condition for over 30 years. This witness gave it as her opinion that it would be highly dangerous to have a person with that condition in a room locked from the inside. The witness said that she had discussed the matter with a nurse who worked in the area of diabetes treatment and as a result of what she was told she advised the Principal that it would be negligent to provide the Complainant with a key to room R46. Ms. F told the Court that based on her experience the use of an insulin pen was a straightforward matter and that if necessary the insulin could be administered through the recipient’s clothing.

Conclusion of the Court

Preliminary Issue

The Respondent submitted by way of a preliminary objection that the Court could not entertain any complaints in relation to matters which occurred after the submission of the Complainant’s complaint to the Equality Tribunal for investigation. It was submitted that as the within complaint of discrimination was lodged on 1^stApril 2009, acts occurring after that date, which are alleged to constitute discrimination, could not have been comprehended by the complaint referred to the Equality Tribunal. Consequently, it was submitted, this Court could have no jurisdiction to investigate any such complaints.

In Determination EDA1124,Ann Hurley v County Cork VECthis Court considered the scope of its jurisdiction on a similar question as that posed by the Respondent’s preliminary objection in this case. In determining that events that post-dated the referral to the Equality Tribunal could not be regarded as part of the complaint before it, the Court adopted the dictum of the Court of Appeal for England and Wales inRobertson v Bexley Community Centre[2003] IRLR 434 wherein the following passage appears in the judgment of Auld LJ (with whom Chadwick and Newman LJJ agreed,) (at par 10): -

• “On the following day, 5 October, the planned reconciliation meeting between the two men took place. But it was a dismal failure. Mr Pankhurst was racially abusive to Mr Robertson and refused to shake his hand. The Community Centre immediately set in train procedures to discipline him for that, but he pre-empted that outcome by resigning on the following day. Those events of 5 and 6 October, postdating, as they did, Mr Robertson's application to the employment tribunal, were not and could not be considered as part of his application. If he had wished to have them considered, he could have issued a fresh application asking the tribunal to dispense with service and hear the complaints in both applications at the same time. But he did not do that.

• “The decision inCounty Louth VEC v The Equality Tribunal and Pearse Brannigan,Unreported, High Court, McGovern J. 24^thJuly 2009, is clear authority for the proposition that a claim under the Act may be amended so as to rely on additional acts or omissions which occurred before the claim was initiated provided that the nature of the claim remains the same. In this case the Complainant is seeking to rely on incidents which occurred after her claim was presented for the purpose of obtaining redress. The decision inRobertson v Bexley Community Centreindicates that this is not permissible.
  • The Court did, however, indicate in the course of the hearing that it would hear any evidence which the Complainant wished to tender, in relation to later incidents, which had probative value in relation to the incidents which are encompassed by her claim”.

The issues

While a range of issues was raised in the course of the hearing of this appeal the only matter before the Court concerns the Complainant’s claims that he was discriminated against, victimised and harassed on the grounds of his disability. There are essentially two sets of issues which come within the ambit of the claim referred to the Equality Tribunal in April 2009. Firstly, there are issues surrounding the Respondent’s instruction to the Complainant to provide written notice of hospital appointments. The second set of issues which are cognisable for the purpose of the within appeal relate to the relocation of the Complainant from room R09 to room R46. Finally, the Complainant has relied upon the events of surrounding his proposed return to work in January 2010 as constituting acts of victimisation. For the reasons already referred to in this Determination those events cannot be regarded as part of the claim seeking redress under the Acts which was lodged with the Equality Tribunal on 1^stApril 2009 nor can they be relied upon for that purpose in the instant appeal. They can, however be relied upon evidentially in seeking to imputemala fidesto the Respondent.

A further difficulty in this case arises from the manner in which the Complainant’s case is structured and the apparent grounding of overlapping claims based on the same set of facts. It would appear from the Decision of the Equality Officer that the Complainant relied upon the issues surrounding the instruction to provide written evidence of hospital appointments as amounting to discrimination in terms of conditions of employment. The events relating to the relocation of his workroom from room R09 to room R46 are relied upon to ground a claim that the Respondent contravened s.16 of the Acts by failing to provide him with reasonable facilities to accommodate his disability. The Complainant relies on essentially the same set of facts to ground a claim of victimisation in asserting that the decision to relocate him from room R09 was a punitive measure adopted by the Respondent in consequence of him having made a complaint of discrimination on the disability ground by letter to the Respondent dated 11^thNovember 2008. It further appears that the Complainant is relying on of these putative occurrences to ground a claim of harassment, again on the grounds of disability.

It seems to the Court that as a matter of principle the Complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts. The Court will, however, deal with these overlapping claims as if they were pleaded in the alternative.

The Law Applicable

Section 6 (1)(a) of the Acts provides that discrimination arises 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 in subsection (2) (in this Act referred to as the “discriminatory grounds”)

• • (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.

• • 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. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (seeBritish Gas Services Ltd v McCaull[2001] I.R.L.R. 60).

• • (i)A complaint of discrimination made by the employee to the employer(ii)Any proceedings by the complainant
    
    (iii)An employee having represented or otherwise supported a complainant
    
    (iv)The work of an employee having been compared with that of another employee for any of the purposes of the Acts
    
    (v) An employee having been a witness in any proceedings under the Acts or the Equal Status Act 2000
    
    (vi) An employee having opposed by lawful means an act which is unlawful under the acts or the Equal status acts 2000.
    

• • “references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds”

Conclusions of Fact

The Court has carefully evaluated all of the evidence tendered in the course of this appeal together with the careful submissions made on both sides and the extensive documentation put in evidence.

The allocation of the burden of proof as between the parties is now governed by s.85A of the Acts. This Section provides a three stage test. The Complainant must first prove the primary facts upon which he relies in advancing his claim of discrimination. If the primary facts are proved, or are admitted, the Court must be satisfied that they are of sufficient significance to raise a presumption of unlawful discrimination. If the first two limbs of this test are satisfied by the Complainant the Respondent must then prove, as a matter of probability, that the Complainant was not subjected to unlawful discrimination, or as the case may be, victimisation.

Claim of Discrimination

Turning first to the claim of discrimination arising from the requirement imposed on the Complainant in relation to his hospital visits, there was a conflict of evidence between the Complainant and the Principal in relation to whether the Complainant was required to obtain confirmation of having attended the out-patients department of the hospital or whether he was merely required to give advance notice in writing of his appointments. On balance the Court prefers the Principal’s evidence on this point and accepts that the Complainant was required to provide advance notice in writing. The explanation given by the Principal for this requirement is entirely plausible and it is easy to understand the inconvenience and disruption that could be occasioned by the Complainant leaving work without advance notice. Moreover, the Complainant would have had advance notice of when he was required to attend for treatment and it was not unreasonable or particularly burdensome to require him to provide advance notice to the Respondent.

While it is accepted that in the initial stages this requirement was applied only to the Complainant and not to the teaching staff, the Court does not accept that the Complainant and the teaching staff were in comparable situations. As was pointed out in evidence, where a teacher is absent at short notice other teachers can be assigned to cover his or her teaching duties. In the case of the Complainant, since he was the only caretaker, a temporary replacement may have to be found and this would only be possible on reasonable notice. However, this situation was soon rectified and the requirement to provide advance notice was extended to all staff.

Accordingly, the Court does not accept that the Complainant was subjected to discrimination by being required to give advance notice in writing of his medical appointments.

Reasonable Accommodation

There was again a conflict of evidence in relation to the events surrounding the relocation of the Complainant from room R09 to room R46. Having considered all of the evidence tendered on this issue the Court has concluded that room R09 could not properly be classified as a private facility. Clearly this room was used by others and the Court accepts that it was relatively easy to access. The Court is also satisfied on the evidence that room R46 provided equivalent facilities to those available to the Complainant in room R09.
While the Court accepts that the suggested use of the staff toilet to administer insulin was somewhat incongruent, this proposal was made against the background of the Complainant’s rejection of all other proposals. The Court further accepts that the Respondent had bona fide concerns at the safety implications of providing the Complainant with a facility to lock the room from the inside. While the Court accepts that the Complainant’s preference was for a locked room, it is not satisfied that the absence of a facility to lock room R46 from the inside could have materially affected his ability to continue in employment.

In relation to the storage of the Complainant’s insulin and associated equipment, the evidence disclosed that he accepted, albeit reluctantly, the use of a locked cash-box located on a high shelf in room R46 for this purpose. There was nothing in the evidence to suggest that this facility was inadequate for that purpose.

Finally, the evidence disclosed that the decision to relocate the Complainant from room R09 was for the sole purpose of using that room for the storage of chairs which the School had acquired. This was accepted by the Complainant and his trade union was also informed in advance of the intended relocation and the reason for it. No objection was taken by the trade union to what was proposed. In these circumstances there is no basis whatsoever for the contention that the relocation of the Complainant was a punitive act on the part of the Respondent amounting to victimisation.

Accordingly the Court is satisfied that the Respondent did not fail in its duty to provide the Complainant with reasonable accommodation in accordance with s.16 of the Act. The Court is further satisfied that the impugned relocation of the Complainant did not constitute an act of victimisation within the meaning of s.75 of the Act.

Second act of Victimisation

The Complainant alleges that he was victimised by the decision of the Respondent to refer him for medical assessment before his return to work. This event occurred after the within claim was lodged and it could not have been comprehended by that claim. However, for the reasons referred to earlier in this Determination, and for the sake of completeness, the Court has considered the evidence adduced on this matter.

It is not uncommon for an employer to require an employee who has been on long term sick leave to undergo an independent medical assessment before returning to work. In some cases the common law duty of care which an employer owes to an employee may obligate an employer to adopt such a course. In this case the Complainant’s disclosed symptoms indicated a stress-related condition. The Court accepts that the Respondent was concerned to obtain an assessment of the cause of that condition and it was not unreasonable in these circumstances for it to seek the advice of a Psychiatrist. The terms on which the Complainant would undergo the proposed assessment was discussed with the Complainant’s trade union representative and were agreed although the Complainant did not, in fact, cooperate in having the assessment undertaken.

In these circumstances the Court cannot find anything in the manner in which this matter was approached by the Respondent to indicatemala fideson the part of the Respondent or to evince animus towards the Complainant. The Court is equally satisfied that the stance taken by the Respondent in requiring this assessment before the Complainant returned to work was not in any sense in retaliation for his earlier complaints of discrimination.

Harassment

There is no evidence before the Court upon which a claim of harassment within the statutory meaning of s.14A of the Act could be maintained.

Determination

For all of the reasons set out herein the Court is satisfied that the Complainant was not subjected to discrimination, victimisation or harassment on the ground of his disability. Accordingly the appeal is disallowed and the Decision of the Equality Tribunal is affirmed.





Signed on behalf of the Labour Court



Kevin Duffy
18th January, 2012______________________
DN
Chairman


NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.