The Equality Tribunal
Employment Equality Acts 2000 to 2011
EQUALITY OFFICER'S DECISION
NO: DEC-E2012-023
Parties
An Employee
(Represented by the Equality Authority)
V
A Public Sector Employer
(Represented by Kent Carty Solicitors)
File No. EE/2009/747
Date of Issue: 5 March 2012
Keywords:
Employment Equality Acts - Discriminatory treatment - Failure to provide appropriate measures -promotion/re-grading - Victimisation - Disability - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by An Employee (hereafter "the complainant") that he was subjected to discriminatory treatment, including a failure to provide appropriate measures and victimisation by a Public Sector Employer (hereafter "the respondent") on the ground of his disability. The complainant claimed that he had been subject to less favourable treatment by an employer that has failed or neglected to implement a proper equality policy. This failure has meant that the complainant who ought to have been promoted in 2007 did not get the promotion. The complainant maintains that this discriminatory treatment has been on-going since 2004. Furthermore, the complainant maintained that after he raised the issue of disabilities at a partnership meeting he was threatened with disciplinary action. This, it was submitted, amounts to victimisation.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 8 October 2009 under the Employment Equality Acts. On 30 September 2011 in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by section 79(1) and as part of my investigation, I proceeded to hearing on 10 January 2012. A hearing scheduled for an earlier date had been postponed as a witness was unavailable. The decision has been anonymised to protect the privacy of the complainant.
2. Case for the complainant
2.1. The complainant has been employed in the public sector since 1992. He began his career in the civil service. In 2001, he requested and was granted a transfer to his current location. The respondent became an independent public body in 2005. The complainant has retained his civil servant status as his secondment arrangements have been extended with the consent of the complainant and his parent Department.
2.2. At the time of the complainant's appointment in 1992 his employers were informed - via the Chief Medical Officer - that the complainant had been involved in a serious car accident and that: "[he] has only very small sign that he ever had anything wrong with him. He has a slight speech impediment but is otherwise quite well in every respect".
2.3. The complainant submitted that he has received horrific treatment from the respondent. He claims that his employers have failed to engage him in any meaningful way and that the respondent is dismissive of the complainant and all disability related issues. The complainant maintained that the respondent had failed to:
1. monitor and assess his progress as a person with a disability;
2. protect him from unwarranted threats from a member of management in 2004;
3. to investigate these threats when reported to management in January 2005;
4. inform the complainant what courses he required in order to progress in the workplace;
5. implement a promotions policy for people with disabilities;
6. train interview boards to properly deal with disability issues;
7. act on medical advice recommending that the complainant be assessed by a named foundation;
8. excluded him from the planning of a disability policy; and
9. inform the complainant of his right to seek promotion within the respondent organisation on a temporary basis;
10. failed to refer his complaint to the Equality Authority for mediation.
2.4. The complainant sought to be appointed to a vacancy that came about as a result of it being transferred for operational reasons to the location where the complainant works in 2007. The complainant attended the interview and was disappointed that despite informing the interview board that he had been registered with the National Rehabilitation Board that the Interview Board did not appoint him to the post. The complainant queried what extra marks he received for being a person with a disability. The complainant also pointed out that the successful person did not have the right to apply for the position as he was not an established civil servant. Furthermore the complainant took exception that the person who had told him in 2004 not to go for a promotion was on the interview board.
2.5. The complainant was informed on 23 March 2007 that he had reached the qualifying mark for the role sought and that he had been placed on the panel. The complainant was also provided with his marking sheet and a report of the interview board. He scored 74 out of 100. This was 23 points higher than the qualifying mark. The complainant took exception that he scored 17 out of 30 under the heading of "communication". The complainant maintains that he has a slight stoppage in his speech and that at times he finds it hard to express himself. The complainant complains that no proper allowance was made to address this issue and he stated that he believes that but for this low grade he would have been successful in becoming first on the panel.
2.6. The complainant submitted that under the Positive Action Framework the respondent has a duty "to ensure equal opportunity and job development". The complainant submitted that the respondent has a duty to encourage the complainant to apply for promotions and to organise mock interviews and training session for the complainant". The complainant also maintained that he was refused a second promotion on 5 June 2008. The complainant submitted that as a person with a disability he has worked hard instead of simply sitting at home. This effort ought to have been recognised by the respondent and he ought to have been promoted.
2.7. The complainant questioned whether a thorough recruitment strategy was put in place with "Specific goals, a timeframe and evaluation process"? He also queried whether some aspects of the job could have been modified to accommodate the needs of a person with a disability and whether the interview board properly trained about the skills required for the advertised job?
2.8. The complainant also complained that he had to share a Performance Award with a number of other employees. He stated that instead of being a burden on the state he was working hard and ought to have his efforts, as a person with a disability, recognised.
2.9. The complainant submitted that he was denied reasonable accommodation when he was asked to participate at partnership meetings via video link. While he accepts that he was given permission to attend these meetings in person he submitted that this was not relevant as the partnership committees were disbanded.
2.10. The complainant submitted that he was bullied by the respondent into accepting a settlement offer relating to his grievances in May 2008.
2.11. The complainant submitted that he was victimised by the respondent in June 2009.
3. Case for the respondent
3.1. The respondent is an independent stationary body since 2005. It employs approximately 170 staff across a number of sites. 4.8% of its staff has a declared disability. The respondent adheres to the government's moratorium on recruitment. The respondent refuted that it discriminated against the complainant on the ground of his disability. Furthermore, the respondent denied that the complainant had been victimised contrary to these Acts. The respondent wished to acknowledge the valuable contribution the complainant has and continues to make towards the work of the respondent.
3.2. It was pointed out that the complainant never made a formal complaint against the named employee in 2005.
3.3. In 2007 a position was transferred from another location to the complainant's place of work. A confined competition was held in March 2007 and two applications were received. The interview board consisted of two internal staff members and an external interviewer. It was disputed that the second candidate was not entitled, because he was not permanent staff, to apply for the role. The successful candidate had been working with the respondent for over 4 years on various fixed-term contracts.
3.4. Both the complainant and the successful candidate were deemed qualified for the position. However, as there was only one vacancy, it was filled by the person who scored the highest grade. The complainant was placed on a panel for a period of one year in accordance with the agreed rules.
3.5. The respondent is satisfied that the interview process complained about was carried out in a fair manner for both candidates using predetermined objective criteria against which candidates were scored. The criteria and marking system adhere to the respondent standard for the position advertised. Upon receiving the complainant's claim that he had been discriminated against, a named HR manager investigated the recruitment process and found no discrepancy. This outcome was communicated to the complainant by letter dated 6 June 2007.
3.6. In reply to the complainant's query about the recruitment process the respondent wrote to the complainant on 29 June 2007 pointing out that any required accommodation would be made available to a candidate with special needs if a request for such accommodation is made prior to the interview. It was also made clear to the complainant that the allocation of extra marks is not a consideration in any circumstances. The complainant was referred to a named Employment Assistances Officer after the meeting on 19 November 2007.
3.7. The complainant was assessed by a Consultant Occupational Physician in 2008. This report acknowledges that the complainant subjectively identified some residual difficulties relating to cognition such as adding and needing to take time to fully understand a newspaper article. It was also noted that the complainant has a very mild speech disorder. The complainant was also referred to a neuropsychologist in 2010. This report supports the contention that the complainant is capable of carrying out his duties and those associated with the role that he would prefer to be employed in.
3.8. The respondent received a letter from the complainant on 14 January 2008. The letter was addressed to both the respondent and the complainant's parent department. The complainant yet again raised the issue of neglect relating to his career and other matters that had been previously discussed on a number of occasions particularly at the meeting held on 19 November 2007. The complainant formally requested that the matter be referred to an equality mediation officer. The complainant was informed by the respondent that it could not refer the matter on behalf of the complainant. The outcome of the meeting was that the respondent would seek legal advice on how to deal with the complainant's complaint.
3.9 The respondent received an email from the employment assistance officer (EAO) who confirmed that he has been in contact with the complainant and would continue to support him. The EAO also confirmed to the respondent that it was not his function to campaign for the complainant.
3.10. A named employee wrote to the complainant on 4 June 2009 informing the complainant that she had found the complainant's comments addressed to her at a partnership meeting to be offensive. She warned the complainant that if he spoke to her again in a similar manner, she would have to evoke the disciplinary process. The complainant was informed that a copy of this letter would be place on the complainant's file. It was accepted that this was not appropriate and the letter was received from the complainant's file within days.
4. Conclusion of the equality officer
4.1. 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 Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. It was accepted that the complainant is a person with a disability within the meaning of the Acts. It is clear that the complainant had acquired horrific injuries in a road traffic accident in the mid 1980s. He suffered severe head injuries and went through a period of rehabilitation. It is clear that the complainant has made remarkable recovery from his injuries and now suffers from some residual problems that limit his cognitive functions to a degree.
4.3. The issue of time limits. The complainant referred his claim on 8 October 2009. In accordance with section 77(5)(a) a claim for redress in relation to discrimination or victimisation may not be referred after the end of a period of 6 months from the date of occurrence of the discrimination or victimisation. It is therefore clear that I have no jurisdiction to investigate the interview in 2007 per se. Also, the complaint concerning alleged comments made by a named employee in 2004 is clearly outside this investigation. I am satisfied that in accordance with section 77(6A) I do have the jurisdiction to extend the time limits if I am satisfied that the respondent had a discriminatory policy, contract or provision that extends over a period; there was a deliberate omission by a person to do something that occurred when the person decided not to do it and/or the respondent has acted inconsistently in deciding not to act or the period has expired during which the respondent might reasonably have been expected to act. Therefore I will consider whether there has been a failure to provide appropriate measures for the complainant and whether the complainant has been victimised contrary to these Acts.
4.4. I have found no evidence to suggest that the complainant has been discriminated against by the respondent or that there is a culture of neglect against people with disabilities in the respondent organisation. There is on evidence of less favourable treatment and certainly nothing supporting an argument for 'horrific' treatment. There is nothing to suggest that the respondent is not aware of its obligations under these Acts.
4.5. I categorically reject any suggestion by the complainant that most people with disabilities are a burden on the state. Such persons contribute to the diversity and fabric of Irish life. Majority of people with disabilities can and do work and contribute to workplaces all over the country. Equality legislation recognises these contributions and endeavours to protect people with disabilities from outdated and patronising stereotypes that prevail and, at times, can prevent such persons from contributing in the workplace. It ought to be clear that not all disabilities require appropriate measures and many people get on with their daily lives without others knowing that a person has a disability. There is nothing in these Acts to suggest that a person with a disability is entitled to preferential treatment. That is, there is nothing to suggest that an employer ought to compensate or favour a person who has a disability. It ought to be clear that positive action on the disability ground is only allowed in strict adherence to section 33 of these Acts.
4.6. Failure to provide appropriate measures arises in circumstances where a person who has a disability and who is fully competent to undertake and fully capable of undertaking any duties that such a person would be fully capable of undertaking with such appropriate measures being provided by the person's employer have not been considered or provided. Such measures are only to be taken when needed (my emphasis). I have been presented with no facts from which I can infer that the complainant's needed such measures in order for him to undertake his duties in his current role or in the role that he had sought. It is clear that the complainant's disability does not restrict him in the workplace.
4.7. Notwithstanding the acknowledgement that, in accordance with section 2 of these Acts, the complainant is a person with a disability, it is clear that the complainant's own position is that there are no barriers, because of this disability, to his participation in the workplace. The complainant case is, in essence, that he ought to have been awarded extra marks at the interview in recognition of the fact that he is a person with a disability. There is no onus on an employer to provide more favourable treatment to any of the protected grounds. The prohibition relates to less favourable treatment.
4.8. I find that the respondent has actually done all that is reasonable in the circumstances of this case. It certainly has taken more steps than is strictly required by law. I note that appropriate measures have been even provided where there is no medical evidence supporting the necessity of same. There is no evidence to support the complainant's assertion that the respondent has been dismissive of him and of all disability related issues. I also note that the respondent has made efforts to provide the complainant with training but that the complainant has found such efforts to be 'futile' as all he really wanted was a promotion/appointment to the role he applied in 2007.
4.9. The complainant has not established any facts from which I can infer that he required any modification of his workplace or role. It is clear that the complainant is capable - and indeed has been found to be so by the respondent - of fulfilling the duties of his desired role. The difficulty is that there are a rather limited number of such roles available. The complainant has understood that Employment Equality Acts mean that a person with a disability ought to be given more favourable treatment in promotion competitions. I found that the complainant was articulate and perfectly capable of making his own case at the hearing.
4.10. Victimisation, under these Acts, shall be construed as 'adverse treatment' of an employee as a result of 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.
Therefore, the matter that this Tribunal must consider is whether the complainant has been subjected to adverse treatment and whether the adverse treatment is because of the fact that the complainant has taken action in accordance with section 74(2).
4.11. The definition of victimisation within the meaning of the Acts was clarified by the Labour Court in their Recommendation Watters Garden World Limited v. Iurie Panuta ADE/08/27. The proposition is that the concept of victimisation should be construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act as set out in section 74(2). It is also clear that the above provision evinces a situation in which an employer reacts in a certain way for an employee having committed a protected act. Thus, I must also be satisfied that any alleged adverse treatment is entirely or significantly linked with the protected act.
4.12. It was submitted that as the complainant had written to the respondent informing them that he wished to take the matter further to the Equality Authority (meaning the Tribunal) on 11 August 2009. It was submitted that this letter is sufficient to bring subsequent events under sections 74(2)(a)(b)(c) and especially (g).
4.13. I note that the argument relating to victimisation rests on the following facts. The complainant had raised the issue of a respondent specific disability policy at a partnership meeting on 22 May 2009. The chair had reported that some work had been done in 2008 in relation to a policy and that PMDS would be the appropriate way to identify any such needs. The chair also pointed out that as disability was only one of the protected nine grounds a workplace equality policy could not only address disability issues. The complainant stated that the chair did not know what she was talking about. I note that the chair, who gave evidence at the hearing, found these comments to be offensive to her. Subsequent to the meeting the chair wrote to the complainant and stated that she would be placing the letter on the complainant's personnel file. It was submitted that doing do was completely inappropriate as it did not follow the exact procedure and policy in relation to the respondent's disciplinary procedure.
4.14. It was accepted that the letter had been placed on the complainant's file in error. However, I accept that as soon as this error was discovered, the letter was removed from the complainant's file (within a couple of days). It was submitted that despite the fact that the letter was removed the HR manager personally conducted an informal disciplinary process. It was submitted that this meeting did not comply with the disciplinary process and that these two breaches of the disciplinary process amount to victimisation contrary to the Acts.
4.15. I do not find, on the balance of probabilities, that the letter was placed on the file in the first instance because the complainant had carried out a protected act. It was placed in his file, admittedly wrongly, because the person who wrote the letter believed that the complainant had behaved inappropriately at a meeting and because she assumed that having sent her letter of complaint to the complainant it was the appropriate thing to place the letter in his file. I also find that HR manager spoke with the complainant informally as another employee had made a complaint against the complainant's conduct in the workplace. It is clear that this conversation took place outside the disciplinary process and I note that the code recommends the taking of such an informal approach in the first instance. I am satisfied that any reasonable employer to whom a complaint of disrespectful behaviour is made, will take certain steps with the aim of ensuring such incidents do not reoccur. It ought to be clear that while the complainant does not accept that his comments could be construed as disrespectful it is generally accepted in these matters that such views are subjective, that is, if an employee finds something offensive then it is offensive to them. It ought to be also noted that the letter in which the complainant states that he has to refer this 'sorry saga' to the Equality Authority was sent on 11 August 2009, two months after the alleged incident (The complainant had also referred to the Equality Authority in his correspondence dated 14 January 2008 relating to the competition concerning the wider civil service. This matter had been settled during the informal mediation in May 2008).
4.16. Also, I note that the complainant claimed that he had been bullied into accepting a settlement offer arising from an internal mediation process from the respondent on 9 May 2008. The complainant claimed that he had been worn out by a named employee who travelled over to his house to discuss a number of allowances that the respondent was adding to the complainant's salary. I note that the complainant was assisted by a union representative (not from the complainant's own union) during this process. I note that the complainant claimed at the hearing that this union representative was not acting in his best interest at internal mediation. No evidence was provided to support such an assertion. I note that the complainant has accepted and continues to accept the extra allowances paid to him. I find that the complainant has been treated fairly and with respect by the respondent at all times.
4.17. I also note that the complainant was granted the right to travel to partnership meetings in person in the future (a measure not seen as necessary by medical professionals). It is clear that the fact that the partnership process had since been disbanded has nothing to do with the respondent.
4.18. The complainant took issue that the respondent has not drafted or implemented its own equality policy and is using the code designed for the wider civil service. I find no difficulty in relation to this. It is clear that the respondent is aware of its duties arising from the equality legislation and has shown that appropriate steps have been sought when requested. A mere policy, without proper implementation, will not assure non-discrimination.
4.19. For completeness, I am satisfied that the person who became first in the disputed competition in 2007 was entitled to apply for that post.
4.20. The complainant also complained about a confined competition in the civil service in 2008. I am satisfied that this is not a matter that concerns the respondent.
5. Decision
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has not established a prima facie case of discrimination on the disability ground.
5.3. I find that the complainant has not established a prima facie case of failure to provide appropriate measures.
5.4. I find that the complainant has not established a prima facie case of victimisation. Therefore, this complaint fails in its entirety.
_______________
Tara Coogan
Equality Officer
5 March 2012