The Equality Tribunal
Employment Equality Acts 2000 to 2011
EQUALITY OFFICER'S DECISION
NO: DEC-E2012-032
Parties
An Employee
V
A Government Department
(Represented by Ms. Cathy McGuire BL on the instructions of the Chief State Solicitor's Office)
File No. EE/2010/505
Date of Issue: 20 March 2012
Keywords:
Employment Equality Acts - Discriminatory treatment -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 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 promote him on 21 April 2010. This failure to promote him has been on-going. Furthermore, the complainant maintained that after he lodged his complaint with the Equality Tribunal the respondent has commenced disciplinary action against the complainant. The complainant has been suspended with pay since 29 August 2011.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 7 July 2010 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 30 January 2012. Final information, requested by me at the hearing, was received on 8 February 2012.
1.3. A hearing scheduled for an earlier date had been adjourned to grant the respondent additional time to complete its submission. The decision has been redacted to protect the privacy of the complainant.
2. Case for the complainant
2.1. The complainant has been employed in the public sector since 1974. He submitted that he has been subjected to on-going discrimination by the respondent who has overtly prevented him from being promoted. The reason for this refusal to promote him is because the complainant is a person with a disability. The complainant has acquired the required seniority and has received satisfactory grading in his personal performance review. The promotion, that the complainant submitted that he is entitled to, has been continuously been blocked by his managers and personnel who refuse to recognise the complainant's contribution in the workplace.
2.2. The complainant has been diagnosed with Bi-Polar Affective Disorder in 1972. The complainant described his condition as being stable. He sees a psychiatrist and is on medication. He submitted that the current suspension from his job had had a negative effect on his mental health but that he is back to normal again. A Consultant Psychiatrist report from 15 November 2010 confirms that the complainant mental health condition has remained stable since 2008. The complainant submitted that his doctor had deemed him fit for work.
2.3. The complainant also submitted that had type 1 Diabetes Mellitus and recently has also been diagnosed with obstructive sleep apnea.
2.4. The complainant submitted that the civil service is a joke. He has been working at his grade for 37 years and has not been promoted. The complainant has reached the required standard for promotion. It is his case that but for the discrimination arising from personnel having a black mark on him because of his disability, he would have been promoted to a management role.
2.5. The complainant accepted that other people with disabilities have been promoted in the respondent department. He submitted that those individuals were 'doormats' unlike the complainant. The complainant was 'no Stepford wife' like some people employed by the respondent. Instead he is a born leader who does not keep his head down.
2.6. The complainant submitted that his managers have sent false work reports to personnel. Managers have continuously lied about his character and his work performance. This means that there is a serious question mark over the integrity of the respondent's personnel department and the various 'cowboy' Secretary Generals in the past 25 years. The complainant maintained that his managers were using a common last resort or ruse to block a person's promotion by claiming that he lacked the appropriate skills. He has tried in vain to find out from various personnel officers what these alleged lacking 'skills' are but despite numerous queries over the last sixteen years the complainant has received no satisfactory reply. The complainant claims that this ambiguity means that the managers and the personnel department are engaged in lies and deception.
2.7. The complainant maintained that there is a culture of 'protectionist cronyism' with the respondent. Furthermore, senior managers in his department are mainly sleeping at their desks/offices doing nothing and that he had been picked on for pointing out this and other management failures. He stated that after so many years with the respondent he could do any job going in the department. The complainant believes that the respondent has a grudge against him because he has had the courage to criticise people in positions of authority who believe that they are beyond reproach.
2.8. In relation to the question of the complainant's conduct in the workplace and suitability for promotion. He submitted that the respondent had organised a number of meetings with the complainant that were rather petty in nature. These meetings related to the complainant's alleged conduct in the workplace and concerned minor issues such as napping, inappropriate behaviour towards female co-workers, inappropriate dress, etc. The complainant submitted that he did not believe that these matters really did warrant such meetings and that the respondent was only doing so because it wanted to restrict him as he was not a 'faceless bureaucrat' and because the respondent was obsessed with 'silly, mean-minded rules'. For example, the complainant's managers had lied about him singing out loud in the workplace. The complainant denied this and submitted that everybody sings to themselves now and then and that he is no exception. The complainant submitted that his manager is, inter alia, useless and unable to handle his staff fairly. Dustin the Turkey would do a better job of managing the complainant. It is the complainant's case that most of the respondent's managers are similarly ineffectual.
2.9. The complainant submitted that he was in top form in relation to his disability and did not believe that his disability meant that he needed special facilities or treatment. It is his position that after serving so many years with the respondent he is entitled to a promotion. The complainant stated that he considered that he was quite often doing other people's work also.
2.10. The complainant accepted that he sometimes took a short nap at his desk particularly after a heavy lunch. He suggested that this drowsiness could be linked with his diabetes and/or to his medication. The complainant submitted that other people also routinely napped at their desks.
2.11. The complainant submitted that he was suspended on 29 August 2011 because he had tapped a female colleague on the shoulder. He also conceded that other 'minor' incidents involving female colleagues had been discussed. The complainant stated that he had apologised to a few people when required but pointed out that no complaint had been made against him. Also, his manager had told personnel complete lies about the complainant indecently exposing himself to the manager. Such an interpretation of what had actually happened was a complete fabrication by the manager who 'despised the complainant's guts'.
2.12. The complainant submitted that the alleged indecent exposure incident occurred on 25 August 2011. He had spent the previous night in hospital. The complainant had been working alone in his section in the afternoon. As he had been removed from phone duty due to alleged inappropriate conduct the complainant became irritated by '5 phones hopping'. He rang his manager to ask him to answer the phones and when the manager refused, the complainant had a disagreement with his manager. The first part of the exchange took place in the manager's office and later, after the manager had followed the complainant to the complainant's section, the complainant's trousers accidently fell down while he was leaning over to correct a blind. This mishap resulted in a completely accidental exposure of the complainant's bare buttocks. The complainant submitted that he had forgotten to wear underpants that day due to his stay in hospital. The complainant denied that he made any disparaging remarks about the manager to him or that he scratched his behind while standing there with his nether region exposed. The exposure, he claimed, was the responsibility of the respondent who had not instructed the complainant to wear undergarments despite his manager knowing that the complainant had omitted to wear his foundation wear. The complainant accepted that he did not follow his manager's instructions to go home after the incident. The complainant had not apologised to his manager about this incident as he believed that there was nothing to apologise about and that, in any case, the manager had not told him that he ought to apologise. The complainant also pointed out that the manager had no witnesses to this event.
2.13. The complainant claims that a named colleague grabbed his throat and tried to push the complainant against the wall on 3 July 2009. The complainant had reported the incident to personnel. No action was taken against his assailant and the complainant submitted that this was sufficient evidence that personnel is not impartial and furthermore that they hold a grudge against the complainant.
3. Case for the respondent
3.1. The respondent denied that the complainant was discriminated against on disability or any other ground. The complainant simply had failed to reach the standard required for promotion. Nothing in these Acts can be construed as requiring an employer to promote a person with a disability to a position if the individual is not fully competent 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.
3.2. It was submitted that the victimisation claim was not properly before this Tribunal as no separate claim claiming adverse treatment was lodged with the Tribunal.
3.3. It was submitted that the alleged acts of discrimination on the disability ground pre-dating the commencement date of the Employment Equality Acts fall outside the scope of the Acts.
3.4. It was submitted that the complainant relating to alleged act of discrimination in March/April 2009 are outside the time limits as set out in section 77(5).
3.5. The respondent denied that the complainant had established facts from which an inference of disability discrimination could be drawn. The complainant has claimed both in his written submissions and at the hearing that the treatment that has been meted out has been because he is a 'Kerry supporter', because he has criticised several managers of lying and incompetence and because of 'protectionist cronyism'.
3.6. It was submitted that the Department has a disabilities register for people who have disclosed a disability. 70 officers with a disability have been promoted in over 90 promotions. This means that some officers with a disability have been promoted more than once.
3.7. The disputed assessment was made on 22 April 2010 relating to whether the complainant would be suitable for promotion. It was the complainant's manager's view that the complainant "had not performed sufficiently well to merit promotion. He does not have the required energy levels to take on the additional responsibilities of the SO grade. He also lacks the required temperament and self discipline to make an effective manager." This view was formed based on the complainant's work output and performance in the workplace. It had nothing to do with the fact that the complainant has a disability.
3.8. Due to the complainant's conduct in the workplace having raised a number of concerns over the years, a decision to suspend the complainant had to be made in accordance with the respondent's Disciplinary Code. An investigation pursuant to paragraph 35 of that code is on-going. The decision to evoke the code had nothing to do with the complainant having lodged a claim in this Tribunal. It is a direct result of the serious allegations of disruptive behaviour in the workplace, serious misconduct in relation to a female member of staff, engagement in a defamatory campaign against his colleagues and managers and an incident of serious inappropriate behaviour were the complainant's bare buttocks were exposed to his manager and the complainant used intimidating and offensive language towards his manager. Also it was submitted that the manager would not have known about the complaint before this Tribunal at the material time. The personnel officer who initiated the disciplinary code is not involved in equality related matters (they fall within the remit of her colleague).
3.9. It was accepted that the respondent was on notice of the complainant's disability. It was submitted that the respondent had taken a charitable approach in relation to the complainant's insistence of doing things his own way. However, the complainant's lack of discipline was now affecting his co-workers and action had to be taken as the respondent has a duty of care towards all of its employees.
3.10. It was submitted that the complainant wanted the promotion without putting in the efforts that are required for the promotion. In order for a person to be considered for promotion they must show that they have been effective, respectful of people, have the required commitment and energy and dedication to the work. It was submitted that the complainant lacked these traits and had a difficulty with authority.
4. Conclusion of the equality officer
4.1. Jurisdiction
4.1.1. I note that the complainant claims that he has been subjected to on going discrimination since the beginning of his career with the respondent. The time limits governing an investigation are set out in section 77(5)(a) whereby 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. Section 77(6A) provides for the extension of such time limits in circumstances where 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. This provision envisages a case of ongoing discrimination with the time limit referable to the point at which the discrimination ended. It ought to be noted that such temporal limitations are not always clear from the outset of an investigation. Having heard the full facts of this case I am satisfied that this investigation will look at the latest round of the complainant's performance management only in relation to his claim that he was treated less favourably than another person with a different or no disability in similar circumstances is, has been or would have been treated.
4.1.2. I find that the general prohibition on applying laws retrospectively means that an investigation can only be extended as far as the date of the enactment of these Acts (18 October 1999). To this effect, I dismissed two of the complainant's witnesses who were willing to give evidence relating to the complainant's conduct in the late 1980s and 1990s.
4.1.3. The victimisation complaint was referred in a submission and a letter dated 12 November 2010 and 20 June 2010 respectively. I note that the respondent objected to the matter being investigated as no victimisation claim had been referred on an EE1 form. I do not accept that the complaint of victimisation is not properly before the Tribunal. The EE1 form is not a statutory form. It does not confer jurisdiction on to the Tribunal nor is it a condition precedent for the Tribunal's jurisdiction into the matters alleged. It is not, in my view, necessary to issue a separate EEI form when a complaint of victimisation arises. It is often the case that a claim of victimisation - because of its very legal definition - will only be made after a complaint has been referred Tribunal. Victimisation claims are often a continuation of the alleged conduct and/or entirely separate incidents of adverse treatment. I am satisfied that the respondent received the above submission and letter prior to the hearing. I am therefore satisfied that the respondent is on notice of the nature of the complainant's claim - that the disciplinary process was activated in retaliation of the complainant's complaint to this Tribunal - and find that I have jurisdiction to investigate this aspect of his complaint also.
4.1.3. 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. Claim of discrimination
4.2.1. It was accepted that the complainant is a person with a disability within the meaning of the Acts.
4.2.2. The complainant's last performance assessment was completed on 22 April 2010. I note that the complainant was marked 'satisfactory' in all areas except under 'general conduct' where the complainant was marked 'poor'. The complainant raised no issue in relation to the marking of his work performance and submitted that he considered such grading as sufficient for his promotion. It is clear that satisfactory is the second lowest score and that the scale runs from 1-5. I accept that it is generally accepted that for a person to be considered suitable for promotion the score ought to be at least 3 or 'Good'.
4.2.3. The complainant's assessment form gives clear reasons why the complainant, in the view of the complainant's HEO and AP, is not suitable for consideration for promotion. I find nothing in the complainant's case to support an inference that such an assessment of the complainant's performance was unfounded or influenced by the complainant being a person with a disability. There are no facts from which I can infer that a person with a different disability or no disability who received a similar review as the complainant would have been promoted in similar circumstances.
4.2.4. I also note that the complainant's argument as to why he would make a good service officer and thus be capable of managing up to 10 staff members consisted of a shrug and a suggestion that there was nothing to such a job as SOs 'did nothing but slept at their desks - all the work is done by COs'. I also note that the complainant - who is clearly an intelligent man - chose to behave in a dismissive and disrespectful manner towards the respondent throughout the entire hearing. I find that such a flippant attitude does not demonstrate that the complainant has a good grasp of appropriateness in formal situations. Furthermore, the complainant made a number of quite frankly bizarre allegations about why he has not been promoted. In his opinion the respondent has a petty approach whereby the complainant has been subjected to meetings about silly matters concerning his conduct. I note that the complainant considers matters pertaining to his behaviour in the workplace to be insignificant. I disagree with this opinion. It is a legal requirement that employers aim to ensure safe workplaces for everyone. The complainant's failure to appreciate such matters, in my view, clearly justifies his management's assessment of the complainant's suitability for a management role.
4.2.5. Having gone through all the facts of this case it is clear to me that the complainant's case consists of mere assertion. I have found no case supporting an inference that the complainant would have been capable of undertaking the coveted role of a SO. Furthermore, I do not accept that the complainant has been able to establish a case from which I can draw an inference that a comparator with a different disability or a person with no disability who had behaved and performed in the alleged manner of the complainant would have been promoted in similar circumstances.
4.2.6. I have found no evidence that the complainant has been treated less favourably on the disability ground. The complainant has been subject to the same performance management processes that any other person. There is nothing to suggest that this same treatment in the circumstances of this case constitutes disability discrimination.
4.3. Victimisation
4.3.1. The complainant's case is that since he lodged his claim with this Tribunal the respondent has taken steps to discipline him and he was suspended with pay on 12 September 2011. The complainant claims that this adverse treatment is linked with his desire to challenge the unlawful discrimination that he believes he has been subject to. Having heard the full facts of this case I am satisfied that there is no evidence to support the complainant's case that the initiation of the disciplinary process is in any way linked with him having committed a protected act. I note that the complainant is being accused of disruptiveness and lack of respect in the workplace, misconduct, and for allegedly carrying out a defamatory campaign against some of the complainant's colleagues. I note that these allegations have been made against the complainant by person(s) who could not have known that the complainant had lodged a claim in this Tribunal. I also note that the person in the personnel department who deals with disciplinary matters is not the same person who deals with equality related complaints. Furthermore, I find that the respondent, who has a statutory duty towards all in its employ and who is on notice of the type of alleged conduct of the complainant, had no option but to initiate a disciplinary investigation in the circumstances of this case. Regardless of whether the allegations are substantiated or not [the investigation under the disciplinary code is ongoing], the respondent could have a serious case to answer before this very Tribunal if it had neglected to take action in circumstances where it is aware that there is a potential problem. I find that the respondent had no choice but to initiate the disciplinary code in the circumstances - I am satisfied that complaints concerning the complainant's conduct have been made - and to suspend the complainant. As the action taken by the respondent appears to be in line with the respondent's disciplinary procedure I am entirely satisfied that the suspension has not been in any way motivated by the complainant having committed a protected act.
4.3.2. I find that the reason why personnel took no action involving the complainant in relation to the named colleague who attacked the complainant was because the complainant had agreed to solve the issue locally.
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 victimisation. Therefore, this complaint fails in its entirety.
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Tara Coogan
Equality Officer
20 March 2012