The Equality Tribunal
Employment Equality Acts 2000 to 2011
DECISION NO: DEC-E2012-063
An Employee
V
A Government Department
(Represented by Mr Anthony Kerr BL instructed by respondent's in-house solicitor)
File No. EE/2009/575
Date of Issue: 29 May 2012
File reference: EE/2009/575 - DEC-E2012-063
Keywords:
Employment Equality Acts - Discriminatory treatment - Equal Pay - 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 treatment by a state department (hereafter "the respondent") on the ground of her disability. The complainant maintains that her transfer request to a named Government Department was refused because she is a person with a disability. Furthermore, the complainant has not received her increments. A claim for equal pay was also referred.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal under the Employment Equality Acts on 30 July 2009. On 10 February 2012, 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 25 April 2012. The parties' names have been redacted to protect the complainant's privacy.
2. Preliminary matter
2.1. The respondent submitted that the complainant's claim is time barred. It was submitted that as the complainant lodged her claim on 30 July 2009, the Tribunal has only jurisdiction to examine the complainants claim within a six month period of the lodging of the complaint.
2.2. I note that the Labour Court has recently issued a number of determinations addressing the issue of time limits under section 77(5a). The effect of this provision is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Equality Tribunal unless the discrimination in issue is part of a continuum of events. I am satisfied that as a Tribunal of first instance, I must hear the full facts behind a complaint before I can determine whether the issue at hand falls under section 77(5a) or whether it is a matter of on-going discrimination as set out in section 77(6a). It is clear that in order for this Tribunal to have jurisdiction to investigate a claim of on-going discrimination as set out in section 77(6a) it must be satisfied that the last unlawful act occurred within the six month period (an extension can be granted to 12 months in accordance with the Acts). As the matter here relates to an ongoing policy set out in a number of circulars that has applied to the complainant and continues to apply to the complainant, I am satisfied that this complaint is properly before this Tribunal.
3. Case for the complainant
3.1. The complainant submitted that she suffers from panic attacks and depression. It was submitted that the complainant is a person with a disability within the meaning of section 2 the Employment Equality Acts.
3.2. The complainant has been out on extensive sick leave. Due to her disability she was unable to carry out her every day duties in the workplace due to difficulties with concentration, etc. Because she had been out for long periods of time her increments were stopped. This, it was submitted, constituted less favourable treatment on the disability ground. The withholding of the complainant's increments is on-going. While she received an increment in October 2009, her increments have since been withheld. The complainant submitted that she was a number of increments behind as a result of this treatment.
3.3. The complainant had not referred a named comparator for her equal pay claim. Having considered the matter at the hearing, the claim for equal pay was withdrawn.
3.4. The complainant withdrew her complaint concerning the transfer refusal.
3.5. The complainant submitted that if action had been taken by her employers in relation to her request to internally be moved to another section that she deemed less stressful she would not have been out on such lengthy sick leave.
3.6. Furthermore, in her submission, the complainant argues that the failure to pay her increments now, after she had taken a claim to this Tribunal, constitutes victimisation.
3.7. The complainant refuted the respondent's submission in relation to whether she is a person with a disability and relied on decision DEC-E2007-025 whereby an equality officer had accepted that the complainant's condition was a depressive illness and therefore it constituted a disability within the meaning of the Acts.
4. Case for the respondent
4.1. It was submitted that the respondent does not accept that the complainant is a person with a disability with in the statutory meaning of the Acts. It is accepted that the complainant has been out on extensive sick leave. The respondent relied on the Labour Court decision A Government Department v A Worker EDA094 where it was made clear that the onus to establish that a complainant has a disability falls on the complainant. The court also distinguished between emotional upset, unhappiness or the ordinary reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other.
4.2. The respondent rejects any claim that it discriminated against the complainant on the disability ground.
4.3. The reasons why the complainant's increments have been deferred are:
1. Her increment dates have been deferred in line with the relevant Circular 9/1987 to take account of the complainant's on paid sick leave; and
2. Her increments have been deferred because of the amount of sick leave she had taken.
The complainant's increments had reached point 5 on 8 May 2004. Her 6th increment that was due to accrue in May 2005 was deferred in accordance with the provisions of paragraphs 5 and 16 of the Circular. The complainant had been absent for 348 days, including an off pay period of 245 days. The complainant was returned to work on a phased basis on the recommendation of the Chief Medical Officer on 20 June 2005.
4.4. The complainant was absent on leave again on (all unpaid):
- 25 August 2005 to 28 February 2006 - 188 days
- 24 April 2006 to 16 May 2006 - 22 days
- 19 June 2006 to 17 February 2008 - 1 and 244 days.
The above absences further deferred her incremental date in line with paragraph 5 and 16 of the Circular.
4.5. The complainant's request to have her sick leave discounted had been refused by the Chief Medical Officer who was of the opinion that the complainant's illness was of such nature that it was likely to occur.
4.6. It was pointed out that at the time of the granting of the complainant's increment in 2009 the persons who recommended the granting of it were not aware of the fact that the complainant had taken a case to Equality Tribunal. Her managers submitted that they had given the complainant the benefit of the doubt in circumstances where she was not strictly entitled to the increment. However, as her management had noticed a marked improvement in the complainant's attendance at work it was decided to exercise good faith and discretion. The payment was backdated to April 2009. However, no further increments have been granted due to the fact that the complainant has since accrued excessive sick leave.
4.7. It was submitted that the only reasonable accommodation that the respondent could offer the complainant is to tear up the policy governing increments.
4.8. The respondent asserted that the complainant has failed to demonstrate how she was allegedly discriminated against on the ground of her disability or how she was unfairly treated. It was submitted that her case was managed in a fair, proper and equitable manner in accordance with circulars 34/76, 33/99 and 9/1987. The complainant has brought forward no comparator to demonstrate that she had been treated differently to any other officer with a similar level of sick leave, and it is the respondent's position that she has been treated in the same manner as other staff would be in a similar position.
5. Conclusion of the equality officer
5.1. 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.
5.2. I note that the respondent disputed that the complainant was a person with a disability. Section 2 of the Acts defines disability and it is established in law the definition used is a medical one. It is clearly a broad definition that encompasses a broad range of conditions that include a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour. It is clear that the complainant, in the workplace, had referred to 'stress'. She stated at the hearing that this is what she preferred to call her condition. I note that the respondent argued that a strict literal interpretation of the statutory definition in section 2 would produce the result that a mere unhappiness or ordinary stress or disappointment which effects a person's emotions would have to be classified as a disability.
5.3. A Government Department v A Worker examined whether an adjustment disorder is a disability within the meaning of the Acts. There was no mention of an adjustment disorder at the hearing. I have had sight of complainant's doctors' notes from 2004 onwards and I accept that the complainant suffers from more than mere 'workplace related stress'. I accept the complainant suffers from depression and panic attacks. These are medically recognised conditions that effect a person's emotions and thought processes and therefore I find that the complainant is a person with a disability within the meaning of the Acts.
5.4. The fact that the complainant is a person with a disability does not mean that the application of a circular that affects all civil servants is discriminatory. It ought to be noted that not all persons who have disabilities take long periods of sick leave. However, it is clear that the management of some disabilities may necessitate longer sick leave. I also accept that this may result in situations that may seem unfair to the complainant. I note that the complainant stated that her issue was not with the circular per se. The complainant case is that she ought to receive different treatment from all other employees because she is a person with a disability.
5.5. It ought to be noted that there is no onus on an employer to provide more favourable treatment to people with disabilities. An employer must apply any policy governing its employees in a manner that does not discriminate. The purpose of such regulations is to ensure transparency in the manner in which the respondent manages its incremental schemes. There is no evidence to support an argument that the complainant has been treated less favourably than any other person with similar levels of sick leave as the complainant is, has or would be treated.
5.6. Reasonable accommodation arises in circumstances whereby "a person who is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation being provided by the person's employer". This means that in circumstances where a respondent, who is on notice of a disability, and it is clear that because of said disability, the person requires appropriate measures. Such measures may include, inter alia, shorter working hours, adaptation of premises or equipment, distribution of tasks, etc. It ought to be clear that reasonable accommodation does not extend to more favourable treatment, that is, it is about different treatment that is justified because the person's disability necessitates such different treatment. Reasonable accommodation refers to the necessary provision/alteration of a role/workplace in order to enable a person who but for his/her disability would otherwise be fully competent in undertaking.
5.7. I note that it was the complainant's position that if she had been moved to another section as per her requests then perhaps she would not have been on sick leave as much as she was. However, she did also honestly acknowledge that despite that she had been moved in 2012 away from the area of work that she found so stressful, she could not be certain that she would not have problems with her health again.
5.8. I am not satisfied that the complainant has established a case whereby the onus to provide reasonable accommodation has shifted to the respondent. There is no evidence to support the complainant's claim that reasonable adjustments would have made her fully capable of undertaking her duties. There is mere assertion to support such a position.
5.9. It ought to be noted that the complainant had not claimed victimisation in her complaint form. The matter was mentioned in her written submission. I am satisfied, having heard the full facts from the parties, that I am in a position to address the issue in the circumstances of this case. Victimisation under these Acts arises in circumstances where a person experiences adverse treatment occurs as a reaction to a person having carried out a protected act as set out in section 74(2). It is clear that the withholding of the complainant's increments had taken place prior to her lodging her complaint. It is equally clear that the complainant's increments have been consistently withheld on the same grounds throughout the complainant's employment and therefore it is clear that the treatment has not changed after the lodgement of her claim. It was accepted by the respondent that an increment had been given to the complainant in 'good faith' in 2009 as the complainant's attendance at work had improved. Such a payment cannot be deemed as 'adverse treatment' and I accept that it was made by persons who were not at the time aware that the complainant had lodged her claim. Therefore, I find no evidence of adverse treatment.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
6.2. I find that the complainant has not established a prima facie case of discriminatory treatment on the disability ground.
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Tara Coogan
Equality Officer
29 May 2012