Employment Equality Acts 2000 to 2011
DECISION DEC-E2012-057
An Employee
(Represented by Mr. Daniel Keleher BL on the instructions of Rosemary Scallon and Co. Solicitors)
V
An Employer
(Represented by IBEC)
File No. EE/2009/574
Date of Issue: 16 May 2012
Keywords:
Employment Equality Acts - Discriminatory Dismissal - Gender - Disability - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a complaint by an employee (hereafter "the complainant") that she was subjected to discriminatory dismissal by an employer (hereafter "the respondent") on the grounds of her gender and/or disability. The complainant was told on 30 March 2009, the date of her dismissal, that she was too nervous and of an unsuitable disposition for the role. The complainant withdrew her claim in relation to her gender complaint in a supplemental submission received by the Tribunal on 4 November 2010.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 30 July 2009 under the Employment Equality Acts. On 6 December 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 27 March 2012. An adjournment had been granted to the complainant on the ground that she had been outside the jurisdiction at the date of the earlier scheduled hearing. Additional information, requested by me, was received on 12 April 2012. The parties names have been redacted to protect the complainant's privacy.
2. Case for the complainant
2.1. The complainant is a person with mental health difficulties that have been diagnosed as including anxiety, depression and post-traumatic stress.
2.2. The complainant was employed as a 'Services Operational Relief Worker'. Prior to commencing her employment, the complainant underwent a pre-employment medical examination in which her illness was disclosed. She received no formal training or induction procedures prior to commencing work. Her work consisted of 12 hour shifts, 3 to 4 times a week.
2.3. On 25 March 2009, a serious and violent assault took place between two of the residents on the respondent's premises. The complainant was working with her male colleague when a new resident was admitted to the shelter. The resident sat in the front sitting room drinking alcohol, an activity that is permitted in this shelter. On several occasions the complainant had to make her way over to him to ask him to lower his voice as he was speaking loudly of matters that the complainant viewed as being potentially contentious. After one of these occasions, the resident followed the complainant to her office where he lunged at her as if to embrace her. The complainant asked the resident to immediately leave the office and not to come back in again. She then told her male colleague what had happened and submitted that he took no action but simply laughed. Approximately 30 minutes later the resident began to fight with another resident. The complainant went into her office, locked the door and rang the Gardai. She could see her colleague through the glass door gesturing at her to call the police. She could also see the instrument used in the fight and some blood on her colleague's head. The complainant asked the Gardai on the phone whether it was alright for her to leave the building and was told by the Gardai that she could go outside provided that it was safe for her. When she got outside she found her male colleague already there.
2.4. After the Gardai had arrived and detained the feuding residents, the complainant returned to the building. She discovered the hall, her office and the sitting room covered in blood. She remained on duty for the rest of her shift and assisted the police with their investigation. The complainant was given no advice as to how to deal with the aftermath of the situation.
2.5. As a result of the complainant's involvement in events touching and concerning the said assault and its aftermath she was greatly upset, traumatised and psychologically injured. This necessitated her seeking medical attention and she was given 14 days sick leave by her general practitioner in order to facilitate the complainant seeking psychological treatment. She received a text message from her manager asking her to return to work the next day but the complainant informed the manager that she was not ready to return to work immediately. She was suffering from flashbacks, poor concentration, prominent anxiety symptoms and hyper arousal. She underwent trauma counselling. The complainant discussed her symptoms with other employees of the respondent prior to her dismissal.
2.6. The complainant was dismissed on 30 March on the grounds that the complainant was too nervous, scared and because her whole disposition was unsuitable.
2.7. The complainant relied on Health Service Employee v Health Service Executive (DEC-E2006-013) relating to a disability that had been imputed on the complainant. It was submitted that, without prejudice to the foregoing, that even if the respondent was not on notice that the complainant was a person with a disability, it had imputed a disability onto the complainant by referring to the complainant as being 'nervous'.
2.8. The complainant also relied on Customer Perception Limited v Gemma Laydon (EED0317) is a case involving failure to consider appropriate measures (under the 1998 Act) before a dismissal and A Health and Fitness Club v A Worker (EED037) sets out the test that a respondent wishing to rely on a section 16 defence must satisfy.
3. Case for the respondent
3.1. The complainant was dismissed on 14 April 2009. The complainant's performance had not been viewed as being of the required standard and as she was on her probationary period she was not confirmed in her post.
3.2. The respondent disputed that it was aware of the complainant's disability. A pre-employment assessment was carried out and the complainant was deemed fit for work. Her assessing doctor's letter stated:
"I can confirm that [the complainant's] medical information obtained during her pre-employment medical examination remained confidential to this practice and was not disclosed to [the respondent]. We were able to make a decision regarding her fitness to work based on the information we had and there was no requirement for disclosure or necessity to suggest adjustments/restrictions to her work based on her medical history and assessment."
3.3. The respondent disputed that the complainant was not provided with formal training or induction training. Her first induction training was on 10 December, 2008. The complainant met regularly with her manager. On 20 January 2009 the complainant's line manager spoke with the complainant about her nervousness in dealing with the residents. The complainant had accepted that nervousness was an issue that she needed to address and indicated that she enjoyed her work.
3.4. In March 2009 the complainant had failed to issue a warning to a client after she had been requested to do so by a full-time member of staff. The matter was discussed with her manager and the complainant had undertaken to henceforth follow the instructions of staff that had more experience in dealing with the residents regardless of her own personal opinion at the time.
3.5. On 25 March 2009 a serious incident occurred on the respondent premises. Two residents and a staff member were admitted to hospital. The complainant was on duty that night. She left the premises during the incident and left her colleague alone and unsupported. This is not deemed to be acceptable practice in the respondent organisation. It was submitted that this incident escalated to the degree that it did because the complainant decided to ignore her more experienced colleague's instructions and rely on her own judgment. As a result of this decision, doors and gates were not unlocked in a timely fashion and the incident escalated to such a degree that a co-worker of the complainant was injured.
3.6. It was submitted that the respondent workplace is not suitable for everyone. Due to the nature of the service offered, the respondent workplace is a challenging environment. This is the reason why good teamwork is required and an employee is expected to follow the instructions given by a colleague. Staff must adhere to the policies to ensure potentially volatile situations are identified and diffused before they escalate. Discipline is required to ensure stability in these 'low threshold' environments and any violation from same can have unpleasant consequences.
3.7. On 6 April 2009 the complainant met with a manager. She was informed that the manager had viewed the incident reports and CCTV footage of the incident. The manager informed the complainant that she had decided to take the complainant off the relief panel because she had failed to follow instructions and because she had left a member of staff on his own during the incident. She had formed the view that the complainant was not suitable for working in the sometime chaotic environment that was linked with the nature of the service that was provided.
3.8. The manager submitted that she had undertaken to hold these two meetings with the complainant, who strictly speaking was not her employee, because she and other staff had viewed the two incidents sited above as of being of a very serious nature. The manager had formed the view, having consulted with staff and the HR department, that the complainant was not suitable for the role. She disputed that she had ever used the word 'nervous' during the dismissal meeting and pointed out that it was the complainant who had herself told the manager at the beginning of her working relationship with the respondent that she sometimes felt nervous. The manager had advised the complainant to seek guidance from more experienced staff members whenever she felt unsure about something. She doubted whether she had used such language during the dismissal meeting as she said she had prepared the meeting with care. She also stated, in cross-examination, that she thought that disability was a serious matter and that had she been aware of the existence of the complainant's disability, she would have had to approach the matter in a different way.
3.8. The respondent relied on the Labour Court's determination in Tullamore and District Youth Endeavour Limited v Patricia and Catherine Buckley (EDA0511). It was submitted that the complainant must provide credible evidence that she was treated less favourably than a person with a different disability or no disability would have been treated in similar circumstances. It is only when such evidence has been adduced that the Tribunal has jurisdiction to consider the causal link of the less favourable treatment so established and the complainant's case.
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 EDA0917 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 is the common case that the complainant was dismissed. I find that the complainant is a person with a disability. The issue here therefore is whether the complainant was dismissed because she is a person with a disability. In order for such an inference to arise I must be, in the first instance, satisfied that the respondent was on notice in relation to the complainant's disability.
4.3. The complainant submitted that the respondent was on notice because:
1. the complainant had underwent a pre-employment medical examination;
2. the complainant's illness was acutely made worse by her involvement in the events touching and concerning the incident on 25 March, 2009 and its aftermath and would have been obvious to the respondent;
3. the complainant discussed her illness and/or symptoms with other employees;
4. The complainant had submitted a sick certificate for work related stress covering a two week period.
4.4. Firstly, I want to examine the matter of pre-employment medical examination. I note that the complainant submitted that she had disclosed her past medical history to the assessing doctor. There is nothing to suggest that any aspect of this has been revealed to the respondent. I note that it is a matter for the person who has a pre-medical examination to consent to the release of medical history to the respondent. The complainant had not done so and there is nothing to support the assertion that the respondent somehow knew about the confidential disclosure that had taken place between the complainant and her physician. The confidentiality that exists between a doctor and a patient is well established and I require more than mere assertion to determine that such a crucial aspect of the doctor patient relationship had been breached. The pre-medical assessment, disclosed to the respondent, is clear: the complainant was deemed fit to undertake the duties that she had been appointed for.
4.5. It is clear that the complainant had not sought any reasonable accommodation supports and that the complainant had been deemed fit to fully carry out the duties associated with the role. I find that in circumstances where such a pre-employment examination has taken place - within months of the last alleged act of discrimination - the respondent was not under any duty to provide reasonable accommodation to the complainant. It is clear that the respondent had in a proactive manner sought confirmation as to whether the complainant did require any supports or adjustments. A doctor - who knew the requirements of the job - had deemed the complainant fully fit. Thus, I reject any argument that it would have been reasonable to provide the complainant with a shadow person to support her to adjust to the role.
4.6. The complainant's own evidence in relation to her disclosure of her disability to other employees was not very reliable. I appreciate that the complainant, who had had a stressful experience, has little recollection of the exact events after the violent incident on 25 March 2009. It was accepted that she had met with her manager in a coffee shop. The complainant submitted that she thinks she may have mentioned her past medical history to him but, as she honestly admitted, could not be certain of it. Taking the totality of the complainant's evidence, I am not convinced that the complainant had ever disclosed the fact that she had an existing medical condition to her co-workers.
4.7. I do not accept that the fact of the complainant went on medical leave and/or was upset after the incident on 25 March 2009 is in itself a sufficient fact to support an argument that the respondent imputed a disability onto the complainant. Nor do I accept that this sick leave placed the respondent on notice of the complainant's existing disability.
4.8. I do agree with the respondent's submission that to suggest that an acknowledgement or awareness that a person is 'nervous' amounts to a prima facie case of an imputed disability is stretching a point too far. I do not find that a reference to a common human trait is sufficient evidence to support that a disability had been imputed onto the complainant. It is clear to me that many people are nervous in new situations, such as when starting a new job, and I find that such nervousness is often a 'normal' reaction experienced by people regardless of their protected status.
4.9. I note that there is a disagreement between the parties as to whether the complainant handed in a sick certificate after the incident. I do accept that the complainant had been to see her GP. To the fact as to whether the certificate would have put the respondent on notice in relation to the complainant's disability I find that even if I accepted that the complainant's evidence at its highest, that is, that she handed in the said certificate (I also accept that the respondent would not have sought a certificate due to the employment arrangements) it is clear that the reason why the complainant required sick-leave was because she was 'unfit for work'. The respondent was aware of the incident and its specific nature and I find that it would have been perfectly normal for the respondent to accept that an employee having being involved in such an incident would require some time off. I do not accept that the need to take time off on doctor's recommendation is akin to revealing an existing disability.
4.10. In conclusion, I have found no evidence to support the complainant's assertion that she was dismissed because she was a person with a disability. I find, on the balance of probabilities, that the complainant was dismissed because there had been two incidents that her management had deemed to be serious. These incidents had become serious because the complainant had refused or neglected to follow the instructions of her more experienced coworkers. I find that a decision was made by the complainant's managers whereby it was decided that the complainant was not suitable for the duties that she has been recruited for. It is clear that this is a particularly challenging workplace and that seamless cooperation between staff is an absolute must. In these circumstances I do not accept that the decision to dismiss the complainant was in any way tainted by the fact that she is a person with a disability. There is nothing to suggest that another person with no disability or with a different disability, in similar circumstances, would not have been dismissed.
5. Decision
5.1. Having investigated the above complaint, 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 discriminatory dismissal on the disability ground.
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Tara Coogan
Equality Officer
16 May 2012