EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2012 - 149
PARTIES
A Complainant
and
An Employer
File Reference: EE/2008/763
Date of Issue: 9th November, 2012
Headnotes: Employment Equality Acts, section 6,8 and 74 - Section 6(2)(g), Disability - Section 74, Victimisation - Time Limits - Administrative Leave
1. Dispute
1.1. This case concerns a complaint by the complainant that she was discriminated against by the respondent on the ground of disability contrary to section 6(2)(g) of the Employment Equality Acts ("the Acts") in relation to promotion/regrading, contrary to Section 8(1)(d) and that she was victimised by it, contrary to Section 74(2) of the Acts.
2. Background
2.1 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 11th November, 2008, alleging that the respondent had discriminated against her on the ground of disability.
2.2 Written submissions were received from both parties. On the 8th February, 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, 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. A hearing of the complaint was held on 15th September, 2011. The parties engaged in mediation at the Tribunal which was unsuccessful. Further hearings then took place on 28th June, 2012 and 29th June, 2012.
3. Summary of the Complainant's case
Background
3.1. The complainant stated that she has worked for the respondent as a Speech and Language Therapist since June 1994. She outlined her qualifications and experience in that respect. She stated that she worked in special schools, primary schools and in general community care clinics.
3.2. The complainant submitted that she was diagnosed with a prolactinoma (brain tumour) in 2001 and made the respondent aware of it at the time. She submitted that she subsequently availed of medical treatments in that respect. She stated that the only significant sick leave she took was in 2009, and, generally speaking, her sick leave was "nothing more than anyone else". She added that the diagnosis of her illness took some time in the first instance and she was unwell before she was diagnosed. At the hearing, the complainant also stated that she had suffered from certain named symptoms with respect to mental health issues and described how these affected her.
Claim of Discrimination
Initial Application
3.3. The complainant submitted that she applied for a particular post with the respondent in 2007 and, having attended for a competency based interview, was offered the post in August 2007. She submitted that the offer was subsequently withdrawn in December 2007 as a senior manager, Mr. A, submitted an unsolicited reference which stated that she had a "less than satisfactory sick leave record which calls into question her ability to consistently deliver the level of service required for this.....single post at a senior level". She stated that she was not offered the post on this basis.
3.4. The complainant stated that she had submitted three references to the respondent and that there was nothing amiss with those references. She said that she had not included Mr. A as a reference. She submitted that, sometime around September 27th, he had contacted the respondent himself on hearing that she was being offered the post. She stated that she found out that Mr. A was "trying to block her" when she returned to work on around October 8th following a bereavement. She stated that she knew then that she was not going to be offered the post and was informed of this officially on 12th December. She stated that she rang the respondent to ask would it be normal for a manager to intervene and was told that it does not normally happen.
3.5. The complainant stated that she never worked directly with Mr. A and might have seen him "once a decade". She said she had very little other dealings with him and never individually. She did recall on one occasion, sometime in 2000, when she said that he called her in for a meeting. She recalled tearing a file up in front of him but said that she later wrote a letter apologising for her behaviour on that occasion. She stated that she also informed Mr. A about her disability at that time, saying that she had been off sick and had just started taking her medication. She denied that Mr. A did not know about her disability in that context. She added that he would also have seen records of her medical treatment and her correspondence with the respondent about the matter.
3.6. The complainant said that Mr. A's perception was that she was "bonkers" or sick. She said that she accepted that he had valid issues with her performance, but he did not use them as a reason not to give her the post. She said that it was speculation on his part to say that she would not work well under pressure.
3.7. The complainant stated that she currently works as a Senior Speech and Language Therapist in certain schools and was appointed to her current post by Mr. A as he felt that she was the speech and language therapist most suited for it. She submitted that it would be considered a specialised and complex post which also involves dealing with multiple agencies and stakeholders. She submitted that she was performing successfully in that post. Furthermore, she submitted that the interview board considered that she would be capable of fulfilling the duties attached to the new post. She submitted that it is therefore contradictory for Mr. A to say that she would not be able to deal with the new post.
3.8. The complainant said that the respondent did not seek medical information to investigate when or why she had taken sick leave or to find out about her current health status in circumstances where her absentee record due to illness was not high. She also submitted that she should have been sent for an independent medical examination if there were any concerns about her past health history, her current health or her mental health (i.e. her ability to deal with stress/pressure). She submitted that the principle of equal treatment was not applied in this respect also as other candidates were sent for medical examinations.
3.9. In short, the complainant submitted that it was discriminatory for the respondent not to give her the new post because of sick leave when Mr. A did not give any other valid reason for refusing her the post, apart from the unspecified stress related problem. She submitted that she had been discriminated against by the respondent for having a disability that necessitated sick leave and being considered of a delicate mental disposition without any supporting medical evidence. She submitted that the respondent should have ensured that they had all the material facts about any health related concerns before they refused to offer her the post.
Appeals Process
3.10. The complainant submitted that she appealed the decision not to offer her the post. She stated that this appeal was heard under the respondent's grievance procedure by Mr. B, a senior manager within the respondent's organisation. In that respect, she stated that she met with him once, in May/June 2008, and gave a brief account of that meeting. In particular, she said that she told him about her disability. She said that she had very little communication with him after that. She said that she sent him a copy of the complaint to the Tribunal when she made it. She submitted that Mr. B made his decision not to offer the post to her on 16th March, 2009 on the basis that she would not be able to manage the change involved and said that "in a stand alone post with the full focus on her to deliver in a complex environment, there is a real likelihood that she would not be able to perform."
3.11. The complainant submitted that the appeals process set out by the respondent was not followed by Mr. B. She submitted, in particular, that he solicited three additional references from other managers, including a manager whose views had not been solicited in the first instance. She also submitted that he contacted her current manager, Ms. C, in an attempt to have her rescind what she said in her original reference. She said that none of the people who gave him references filled in the appropriate reference form: they just made specific allegations against her. She also submitted that the three extra references were chosen so they would support Mr. A's original reference.
3.12. The complainant submitted that all the people interviewed by Mr. B in this respect alluded to the complainant's inability to work in a complex and/or pressurised environment that was impacted negatively by various periods of sick leave, but they did not refer to any competency that she was lacking to do the post. She submitted that they also did not specify what aspect of the new post would cause her stress but rather talked in generalities. She added that she had no recent encounters with any of the three people in question so they would not know what her health was like in any case. She submitted that, in that context, they colluded in diagnosing her with a vague illness that she does not have and the respondent used this as a reason for not offering her the post.
3.13. The complainant submitted that, while Mr. B's review discarded the sick leave that she had already taken as a valid reason not to offer her the new post, he also diagnosed her with an unspecified stress related problem and therefore upheld the decision not to offer her the case manager post. In that context, she submitted that he continued to discriminate against her on the basis of a different, imaginary disability.
Reasonable Accommodation
3.14. The complainant submitted that an employer is obliged to provide reasonable accommodation to a person with a disability. She submitted that as her brain tumour is rarely active, she should need very little accommodation and that it necessitates taking very little time off work. She submitted that she does not suffer from stress or pressure anymore than anyone else and has effective coping strategies to thwart this happening. At the hearing, she said she never sought reasonable accommodation and it was not an issue.
Summary
3.15. The complainant submitted that her issue was not that Mr. A provided a reference, but that the reference he provided to Mr. D (who was responsible for the respondent's HR services), was inaccurate and referred to her sick leave, that he was insinuating that it would cause her stress and that he questioned her ability to work in a pressurised environment in that context. She submitted that this led to discrimination on the grounds of disability. She also submitted that the decision that she suffers from some unspecific stress related condition was made on the evidence of people, including Mr. A, and echoed by Mr. B, who were not medically qualified. She submitted that this was imputing a disability on her and that the respondent discriminated against her in that context. The complainant submitted that she had established a prima facie case of discrimination on the disability ground.
Claim of Victimisation
3.16. The complainant also submitted that she had been subjected to victimisation since she submitted the details of the Equality Tribunal claim in April 2009. She submitted that she has been suspended from her post pending an investigation into her work practices. She submitted that this suspension occurred in April 2009 and coincided with the receipt by the respondent of a copy of her submission to the Equality Tribunal. She submitted that this is peculiar as Mr. B said in his review in March 2009 that "there is little doubt that from all those who were consulted that the respondent is satisfactory doing her current role".
3.17. The complainant stated that she had rung one of the managers who provided a reference to Mr B, threatening legal action against her. She submitted that she was entitled to take such legal action and the respondent knew this. Consequently, she stated that Mr. E, another senior manager with the respondent, called her in for a meeting in February, 2009, to tell her that if she took any legal action against or contacted the manager concerned she would be jeopardising her current post. She said that she was not planning any legal action at that time so she went back to her normal day-to-day work at that stage and didn't think anything more of it.
3.18. The complainant said that she made her complaint to the Tribunal in April. She said that Mr. E called her in for a meeting on 22nd May, 2009 and told her that the respondent was putting her on administrative leave. She said that he told her that they were going to carry out a review of her clinical performance and when she asked him was this because of her submission to the Tribunal, he smirked and didn't answer the question. She said that she asked why she was being put on administrative leave and he said "you know why" or 'something to that effect'. She said that the only reason the review was carried out was because she had taken her case to the Tribunal.
3.19. The complainant said she was never told the administrative leave was protective or precautionary and she considered it to be disciplinary. In particular, she referred to a letter she received from Mr. E on 25th May, a copy of which was provided to the Tribunal, and said that there was no mention of administrative leave being precautionary in that letter. She said that she was told she would still have to go back to schools which she did not wish to do. She said that she is currently on paid administrative leave.
3.20. With respect to the submission of the respondent that she was placed on administrative leave because of a complaint made against her, the complainant stated that the complaint in question was vexatious and was suddenly brought up six months after the incident that was alleged to have taken place. She also referred to correspondence from Ms. C and Mr. E, copies of which were provided to the Tribunal, and to an e-mail where a Mr. G, who also worked for the respondent, gave advice as to how to "build (its) case" against the complainant. She outlined why she considered that the correspondence in question were further examples of victimisation of her and/or contributed to the victimisation of her by the respondent
3.21. The complainant added that she was offered a job in 2011 that was at a lower skill set and lower grade than her existing job, as well as being in an inconvenient location to which she was not obliged to go. She said that it was better than being in schools but the impression was being given that she was guilty and she was wrong and so she said that to accept this job would be accepting the review was correct. She submitted that she was victimised in that respect also.
3.22. The complainant also submitted to the Tribunal a letter from her Trade Union which stated that it was possible that the respondent would victimise her if she pursued her appeal (to Mr. B). She said that the respondent always led with the assumption that she was guilty and fair procedures were never applied by it to her case. She said that the jurisprudence was that her disability only needs to be a trivial factor in the victimisation and it was so in her case. She submitted that she had established a prima facie case of victimisation in that context also.
Jurisdictional Issues
3.23. With respect to time limits, the complainant submitted that the decision not to proceed with her appointment to the post of case manager includes the subsequent review process. She submitted that this review upholds and actually accentuates the discrimination on the basis of disability. She submitted that the decision of Mr. B had not been made when the complaint was submitted to the Tribunal and, in that context, the discrimination was linked. She said that she became concerned with how the appeal was going after meeting with Mr. B on 27th June, 2008, and this influenced her decision to take the case to the Tribunal. She said that she realised, at that stage, that the appeal was unlikely to be in her favour and she was concerned about how she was being treated by Mr. B as well. She stated that she seeks to extend the time to twelve months in that context.
General Summary
3.24. The complainant said that she had two actual disabilities: the pituitary tumour; and certain mental health issues which she outlined at the hearing. She said that she had been discriminated against by the respondent in that context as already outlined. She also said the respondent had imputed two disabilities on her: stress and distress; not responding well to pressure. She said that she had also been discriminated against by the respondent in that context as already outlined. Furthermore, and for the reasons outlined, she stated that she had been victimised by the respondent for taking this complaint to the Tribunal.
4. Summary of the Respondent's case
Jurisdictional Matters
4.1. The respondent submitted that the complainant was notified of the decision not to proceed with her appointment on 12th December, 2007. It submitted that she has failed to comply with the six month time limit as her complaint to the Tribunal was only received on 11th November, 2008. It stated that if someone lodges a claim to the Tribunal it can always be withdrawn even if you are waiting for the outcome of an internal review and there was nothing that required a person to await the outcome of such a review. In that context, it stated that the complainant had not shown reasonable cause as to why she delayed.
4.2. The respondent also submitted that the Tribunal does not have jurisdiction to investigate the complainant's claim with respect to the review process conducted by Mr B as this review was not the subject of her claim as outlined in her complaint form. It also submitted that the allegation of victimisation is a new complaint and it contends that the Tribunal has no jurisdiction to investigate this matter in that context.
Substantive Matters
Background
4.3. The respondent submitted that, following an interview process, the complainant was advised by a letter dated 24th July, 2007 that she had been recommended by the Interview Board for appointment to the position of Case Manager. It submitted that Mr. A is the senior manager responsible for the complainant's geographical area of responsibility. In that respect, it stated that it notified him by e-mail dated 1st August, 2007 that she had been offered the post. It submitted that this was its normal practice in such instances. In that context, it submitted that Mr. A made contact Mr. D (see evidence of Mr. A and Mr. D below).
4.4. The respondent stated that Mr. A subsequently sent a letter to its national recruitment section dated 5th December, 2007 in which he outlined his reservations about the complainant's suitability for the post of Case Manager in the following terms: "I note that over recent years, she has had a less than satisfactory sick leave which calls into question her ability to consistently deliver the level of service required of this post. As you are aware this is a single post at a senior level in each (area). In addition I can advise that local management have found it necessary to engage over a considerable period of time with (the complainant) and her representatives regarding a number of areas of concern in terms of her employment with us."
Evidence of Mr. A
4.5. Mr. A stated that he had known the complainant for a number of years. He said that there was no issue with her disability that was ever taken account of by him and he was not even aware that she had a disability. He recalled that she made reference to a medical issue (i.e. her tumour) in 2001 in a letter of apology to him. He said that this letter related to a meeting in which the file he had was 'commandeered' and destroyed by her after she 'took flight out of the room' and she attributed these actions to this illness.
4.6. Mr. A said that he referred the complainant to Occupational Health Services following this and stated that he was aware that, some years later, the complainant also went to counselling. He said that his understanding of the subsequent report from the counsellor concerned was that there was no issue other than the negative working relationship between the complainant and Ms. C. He added that her file did not contain any reference to an issue with a disability. He said that he was aware of her hospital appointments but they could have been routine.
4.7. Mr. A stated that there was clear evidence over the course of the complainant's career that quite often her sick leave was taken in order "to compose herself". He said that incidents that occurred included some very minor ones that staff would normally deal with and move on but she would get up and leave in the middle of meetings and get quite upset. In that context, he said that she would leave clients unattended. He said that if the same situation arose with another employee in the same circumstances, he would not have hesitated to do the same. He added that the industry norm for sick leave is no more than 3.5% and she took 7%. In those circumstances, Mr. A said that his reference to the complainant's sick leave, in his letter to Mr. D's office, was taken out of context by her.
4.8. Mr. A also gave a detailed account of why he considered that the complainant fell short with respect to a number of key competencies for the post in question, stating, in particular, that his experience was that she would not work well under pressure. He said there was a fundamental difference between the post she was doing and the post she applied for which is why he did not have issues with transfers and previous promotions obtained by the complainant. He said that his knowledge of her competency was based on his personal experience with her and his knowledge of her through other managers who worked to him.
4.9. In that context, Mr. A said that he felt he had a duty of care to raise, with Mr. D, what he believed were legitimate reservations about the complainant's suitability for the post even though this was not something he had ever done before. He stated that the reason he waited ten weeks to follow up in writing was that he did not make his decision lightly. In that context, he stated that he did speak with others in the meantime in order to ensure he was familiar with the up-to-date position, but did not speak to Mr. D afterwards about the matter.
Evidence of Mr. B
4.10. Mr. B stated that an appeal was available to the complainant through the respondent's Code of Practice on recruitment and selection but the decision was taken by Mr. D that the grievance procedure would be the appropriate procedure for the appeal. He said that, under the Code of Practice, the review of the decision to refuse her the post would be carried out, whereas with the grievance procedure an entire file review would be carried out. He said that he was chosen as an impartial person and in light of his high level of seniority, which he described.
4.11. In terms of the procedure he applied to the appeal, Mr. B stated that he decided to meet the complainant first. He said that she told him she wanted to be offered the job and subsequently decline it, that she wanted a fair and balanced reference and that her suitability for future posts would not be affected by what had happened. He advised her that this wasn't in his gift but he put forward an approach as to how he would deal with the matter viz. he would arrange for a review of the personnel file and a review of references provided and consider everything else that was relevant. He said he then wrote out to her as to how he proposed to proceed in that context and it was agreed that he would bring his report to the attention of the complainant before finalising it.
4.12. Mr. B said that he met all persons involved in the case, wrote a draft report, sent it to the complainant, got comments and then made his determination. He agreed that one witness was added to those involved in the original decision because her name came up in the course of his discussions with others about the appeal but he said that the complainant did not object to the references he consulted with at the time. He said that there was no question of victimisation in that context. He said that in his discussions with other witnesses, they also raised issues with the competency of the complainant in the new role, and he outlined what they said in that respect. He said that the most serious issues that were raised were that she would not perform well in a pressurised environment, but he denied that this imputed a disability on her.
Evidence of Ms. C
4.13. Ms. C gave an account of her experience of managing the complainant and described issues that arose in their working relationship. She also outlined issues between the complainant and other managers, who had managed her while Ms. C was on maternity leave. She accepted that, in April 2002, certain recommendations had been made by occupational health with respect to where the complainant might work, but she said that difficulties arose when she carried out these recommendations. She said that a further report she received from occupational health in 2003 did not give any reason why she could not go back into working in schools. She added that it was virtually impossible for a speech and language therapist not to work in schools.
4.14. Ms. C stated that a complaint was made by particular clients (i.e. parents of children) on 14th October, 2008. She said that a review meeting took place with these clients on 16th April, 2009 and she gave an account of that meeting. In particular, she stated that there was a heated exchange between the complainant and the clients. She said that she received a follow-up letter from the parents and had cause to review the file as a result. Consequently, she said that a number of issues arose from a reading of that file which raised serious questions about the complainant's clinical performance.
4.15. Ms. C also stated that an investigation into the complainant's clinical practice was undertaken on foot of complaints from a school principal on 26th November, 2008. She said that this person would not put their complaint in writing once they found out the complainant had made a complaint to the Tribunal, but she stated that she had to proceed in any event. She clarified that complaints are often anonymous, especially with respect to children, and she has had similar complaints in relation to other schools as well with respect to the complainant.
4.16. Ms. C described how she carried out an investigation in that respect, which she began on 5th December, 2008. She said that she did consult with the complainant, who set out her objections, which she considered. She said that the complainant's complaint to the Tribunal did not inform her report. She said that the issues in question were discussed at a meeting of 19th February, 2009, but only briefly, and she was not aware that the complainant had actually made a case to the Tribunal until July 2011.
4.17. Ms. C said that, arising out of her investigation in this respect, which was completed in March 2009, she wrote to Mr. A and Mr. E recommending that disciplinary action be taken against the complainant. She explained that Mr. E made the decision with respect to whether disciplinary action should be taken. She commented that the complainant had been issued with a verbal warning on a previous occasion and there had been a remarkable improvement in the complainant's behaviour immediately following this. She felt that this approach was the only avenue available to continue managing her. She said that there were also previous occasions when disciplinary action against the complainant had been warranted but they were halted by the complainant going on sick leave. She accepted that the complainant had raised concerns about her verbal warning not being taken off the file, but said she had no control over this.
4.18. Ms. C stated that she did not consider it would be good for the complainant to return to the work she had been doing in the context of the difficulties she had there and given that she had concerns that the complainant continuing in her existing role posed a risk. However, she stated that she was asked to look at other posts that could be offered to the complainant but found there were no other suitable clinical posts outside schools. She added that the complainant herself had requested to be put on administrative leave in December 2008.
Evidence of Mr. D
4.19. Mr. D gave an account of his conversation with Mr. A. He stated that Mr. A had concerns about the complainant's performance and behaviour, particularly given it was a single-handed post (i.e. she had to work on her own) and given her attendance record. He said that one of the key concerns he expressed was that the complainant did not cope well under pressure and that if something happens, "you won't see her for a day or two afterwards". He also recalled that Mr. A mentioned the incident where the complainant tore up a file, and similar issues.
4.20. Mr. D stated that he was concerned that someone at Mr. A's level would ring to express his concern and told Mr. A to send in a report in that context. He stated that he also inquired with his staff about the references that had been provided. He said that, from his perspective, the references were very guarded. He also stated that he had a particular concern about the complainant's performance and behaviour. He said that he did not make any decision until he received the reference from Mr. A and had not formed any view up to that point. He said that the decision not to offer the post to the complainant was a consensus one, although he accepted that he was ultimately responsible for it. He said that the key issues in that respect were performance and behaviour and Mr. A stated these were issues as "a matter of fact".
4.21. Mr. D stated that the complainant's attendance did "come into play" but he said that if there is a major improvement, as in the complainant's case, it is not taken into account. He said the complainant's sick leave was not considered in that context. In any event, he also stated that he would have identified the reasons for the sick leave and it would seldom if ever be the case that a post would be refused on health grounds alone. He said it would depend on the case as to whether a medical examination would be requested and it would only normally be requested with respect to appointments of people from outside the organisation.
4.22. Mr. D said that he did not give the complainant an opportunity to respond to any reference but it would not be normal practice to do so. He also stated that it would not be normal to contact the particular candidate before making a decision and having received unsatisfactory references. He also stated that interventions such as that made by Mr. A would take place in a small amount of cases but it has happened numerous times and, indeed, he himself had made such an intervention. When contacted by the complainant with respect to the appeal of his decision, Mr. D said that the complainant's main concern had been the reference of Mr. A and so he suggested the use of the grievance procedure rather than the code of practice as her grievance was with the reference not with the process that led to his decision.
Evidence of Mr. E
4.23. Mr. E said that three factors led to placing the complainant on administrative leave on 25th May, 2009: the report from Ms. C; a letter from her of 22nd April outlining her serious concerns about the complainant continuing in her role in clinical services to children; the incident referred to at par. 4.14 above. He denied that any of these matters were being used as a threat against the complainant. He stated that he informed the complainant that placing her on administrative leave was a protective measure and did not tell her that the review of her clinical performance was being taken under disciplinary measures. He said that the only mention of a disciplinary process was in a letter of 29th November, 2010, and was made in a different context. He said that he was not sure there was an appeals process with respect to being placed on administrative leave.
4.24. Mr. E stated that the fact that the complainant had made a complaint to the Tribunal was not discussed at the meeting of 19th February, 2009 referred to by Ms. C. With respect to the matters referred to at par. 3.17 above (where the complainant contacted one of the people who had been a witness in Mr. B's appeal review), he agreed that he had told the complainant not to contact the person concerned. He stated that he did so as he had a responsibility to ensure the respondent's staff acted in an appropriate fashion. He said that this was separate and distinct from the complaint to the Tribunal. He added that his experience was that the complainant had been "bombarding" his secretary with calls at which point he wrote to the complainant to tell her that the only contact with his office should be in writing and sent directly to him.
4.25. Mr. E stated that the respondent has made every effort to get the complainant back to work, including offering her a post where she would not be dealing with children. He said that this was not a demotion and was a genuine attempt to resolve the issues arising for her. He said that a number of proposals were put to her in that context but he could not outline these to me as they were the subject of discussions at mediation. He added that there were a number of other questions that he could not answer as they related to those discussions.
Evidence of Mr. G
4.26. Mr. G stated that the relevant e-mail of 24th April, 2009 related to advice the respondent had sought as to the procedures to be followed in taking a case against the complainant. He explained why he had written what he had written in that e-mail stating, in particular, that the reference to "build your case" was not about building a case against the complainant, but just that the respondent should 'have their homework done' before proceeding.
General Submissions
4.27. With respect to the initial claim of discrimination, the respondent submitted that the offer to the complainant was, inter alia, "subject to satisfactory references...being obtained". It submitted that its procedures in that respect, supplied to the complainant when she applied for the post, state that "the recommendation of the interview board does not constitute a job offer" and is only stage one of a selection process which continues after interview. It stated that these procedures reserve the right to seek references from current and previous employers or any other organisations with which the candidate has been associated and reserve the right to determine the merit, appropriateness and relevance of such references.
4.28. The respondent further submitted that it is entitled to rely on references from within its own organisation and is obliged to take into consideration any concerns expressed in relation to the suitability of a person for the post being filled. It said that the complainant herself had acknowledged there were behavioural issues with her. It said that, in that context, there were bona fide reasons for the intervention by Mr. A. It added that Mr. A had explained why he made reference to sick leave which was not related in any way to her tumour. The respondent stated that Mr. B was entitled to interview the people he interviewed and strongly rejected that the approach he took was imputing a disability of any nature and/or that it was victimisation.
4.29. The respondent also denied that the decision to put the complainant on administrative leave was victimisation stating, in the first instance, that administrative leave is not a disciplinary sanction. It submitted that the decision in that respect was taken in light of the serious nature of the complaints made against her and had no connection whatsoever with her claim to the Tribunal. It said that its investigation of these complaints was suspended pending her return to work. It outlined the procedure that had been followed in that respect stating that any outstanding matters will be resolved when she returns to work. It added that numerous members of staff have been investigated in the same or similar circumstances but could not say if any of those investigations led to people being placed on administrative leave. It did provide the Tribunal with some statistical information in that respect.
4.30. In the context that Ms. C's report had been one of the reasons for placing the complainant on administrative leave, the respondent added that Ms. C had no knowledge of the complaint to the Tribunal at the time. It also pointed out that it wrote to the complainant on 12th May, 2009, and agreed with her that it would look at an independent review of her clinical practices. It also added that it had endeavoured to find a suitable role for the complainant and said that the offer it made to her of a new role was not less favourable treatment and was not a demotion in that context. It highlighted again the difficulty in obtaining a post for her that did not involve dealing with schools.
4.31. The respondent reiterated that the matter in its entirety was out of time and the complaints against Mr. B and the claim of victimisation were new complaints and were outside the jurisdiction of the Tribunal to consider in that context. In any event, it submitted that the complainant has failed to establish a prima facie case of discrimination and/or victimisation within the meaning of the Acts.
5. Conclusions of the Equality Officer
Jurisdictional Issue - Time Limits
5.1. In Healy -v- HSE West Area1, the Equality Officer stated that "Section 77 (5) (a) of the Employment Equality Acts 1998 - 2007 states that the six-month time limit starts from the "date of occurrence of the discrimination or victimization to which the case relates or, as the case may be, the date of its most recent occurrence". The approach generally taken in this situation is set out in Cast v Croydon College2 which states that: "a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision, providing that there has been a further consideration to the matter and has not merely reiterated or referred back to the earlier decision." The Report of the Appeals Committee Hearing shows that it was not merely a reiteration of the original decision but they looked into all the facts and essentially carried out a 'de novo' hearing. The letter written on behalf of the CEO is a reiteration of the decision of the Appeal Committee. This does not constitute a new decision but the outcome of the Appeals Committee does and I take this to be the most recent occurrence of the alleged discrimination and the claim is therefore in time."
5.2. In Carroll -v- HJ Heinz Frozen and Chilled Foods Ltd.3, the Equality Officer stated that: "In considering the time limit issue, I am guided by the decision of the Labour Court in a recent case DET No. EDA0923 HSE v Tom Whelehan in relation to time limits. The Labour Court stated "A time limit of the type in issue is analogous to a limitation period for the bringing of actions in civil law. It is settled law that limitation periods run from the time a cause of action accrues and not from the date of knowledge of the material facts grounding the cause of action unless there is an express statutory provision to the contrary. In that regard the Supreme Court, in Hegarty v O'Loughran [1990] 1 IR, 148 rejected the view that a cause of action accrues when the plaintiff could reasonably discover its existence. The Court held that a cause of action accrues at the time when all the requisite elements of the action existed whether or not the plaintiff knew of their existence."
5.3. She went on to state "Having examined the evidence and taking into account the above jurisprudence, I am satisfied that the date of the outcome of the internal appeal against the decision to dismiss the complainant is the relevant date for the purposes of calculating the six month time limit as this is the date when "all the requisite elements of the action existed". The complainant pursued the grievance procedure and appealed the decision to dismiss her and would have done so in the expectation that after putting her case to the appeal committee that the initial dismissal decision would not stand. Therefore the confirmation of the dismissal only occurred on the date the appeal was not upheld and this is the "most recent occurrence" of the alleged discriminatory treatment for the purposes of complying with section 77(5)(a) above."
5.4. In the present case, it is clear that the decision of Mr. B in relation to the appeal was a further consideration of the matter, particularly given that he sought references from persons who were not part of the initial decision-making process. In that context, the date of this decision is clearly the date on which "all the requisite elements of the action existed". As this decision was made after the complainant had made her complaint to the Tribunal, the matter as a whole is within time.
Jurisdictional Issue - Additional Matters
5.5. The complainant raised the issue of Mr B's investigation in her complaint form and clarified the nature of that claim in a submission to the Tribunal on 9th April, 2009. The victimisation claim was made in a letter to the Tribunal on 23rd July, 2009. Even if these claims were to be considered new incidents of alleged discrimination, they were notified to the Tribunal within the required timeframe of six months. In that context, they are within time and will be considered by me in the overall context of this complaint. In any event, I am satisfied that Mr B's investigation is part of a continuum of alleged discrimination in that it is alleged to be a further manifestation of the respondent's propensity to discriminate against the complainant because of her disability. It is also clear that the allegation of victimisation relates to an ongoing matter (i.e. the complainant being placed on administrative leave).
Substantive Matters
5.6. Section 6(1) of the Acts provides that discrimination shall be taken to occur 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)...". Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows - "as between any two persons ...that one is a person with a disability and the other either is not or is a person with a different disability..". Section 74(2) of the Acts provides that victimisation occurs where ".... adverse treatment of an employee by ..her..employer occurs as a reaction to..(a) a complaint of discrimination made by an employee to the employer.."
5.7. The issues for decision by me in this case, then, are: whether or not the respondent discriminated against the complainant on grounds of disability, in terms of section 6(2)(g) of the Acts, in relation to promotion/regarding, contrary to section 8(1)(d); and/or whether she was victimised by the respondent. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Claim of Discrimination
5.8. It is clear that, in reviewing the file subsequent to the call from Mr. A, Mr. D had some concerns about the complainant's attendance and the lack of clarity around her other references. I have carefully considered the evidence given by both Mr. A and Mr. D in that respect. However, I am not satisfied as to the reasons why Mr. D delayed for several months in making that decision, particularly in the context where he said he had no further contact with Mr. A until he received the letter from him. Nor am I satisfied as to the reasons for the delay on Mr. A's part in following up in writing what he had discussed with Mr. D on the phone several months earlier.
5.9. However, and on balance, I am satisfied that the appointment of the complainant would have taken place but for the intervention of Mr. A and that the decision of the respondent not to recruit the complainant for the post in question turned entirely on the negative reference supplied by Mr. A in that respect. Therefore, the key question with respect to this aspect of the complaint's case is whether Mr. A 's decision to provide a negative reference for the complainant was influenced by her disability and/or, as submitted by the complainant, whether the contents of the letter were discriminatory on the ground of disability.
5.10. On its face, the statement that the complainant's "less than satisfactory sick leave record...calls into question her ability to consistently deliver the level of service required of this post" would appear to relate to her disability. However, it was put by the complainant and accepted by the respondent that her sick leave, in so far as it related to her disability, was not excessive. It is clear, then, that this aspect of her sick leave record was not at issue. That being the case, the statement in question must then refer to something else. The explanation as to what it related to was provided by Mr. A when he stated that he was referring to the complainant's tendency to go on sick leave immediately following or preceding a pressurised work situation and that the sick leave she took in that context was beyond the norm. The complainant refuted that this was his meaning. On balance, I prefer the evidence of Mr. A in this respect and accept his explanation for the statement in question. I also accept that Mr. D was aware that this was Mr A's view on the matter when he made his decision to refuse the post to the complainant.
5.11. The complainant accepted that there were valid issues with her performance, but that Mr. A did not raise them in his letter. However, it is clear that Mr. A is drawing from his past experience of the complainant's performance issues in expressing the view he articulates in the letter viz. that this experience gives rise to concerns on his part that she would not be able to cope under pressure and to deal with responsibility. In short, saying that the complainant would not perform well in a pressurised environment is not an indictment or criticism of her mental capacity, rather an informed view of her ability to perform to the required standard in a particular situation.
5.12. I would add that Mr. A states that he did not recall the complainant's disability and so it was not a factor in his decision to write the letter in question. However, if I were to accept his evidence that the reason for the delay in writing to Mr. D was that he took time to reflect upon his decision, then it must also be the case, as suggested by the complainant, that he examined her personnel file and would have been reminded of her disability. At the same time, there is no express mention of the complainant's disability in his letter. Nor is there any evidence that Mr. A spoke about the complainant's disability to Mr. D, or that he mentioned it in any correspondence with Mr. D or his office.
5.13. In short, I am satisfied that Mr. A's judgments with respect to the complainant's professional capacity were clearly and unambiguously related to characteristics which he genuinely believed she possessed and which were relevant to the job for which she was applying. I am satisfied that it was these beliefs, and these beliefs alone, that led him to write the letter and, in that context, I am not satisfied that he was influenced by the complainant's existing disability in doing so. He was certainly not imputing any medical condition or other disability upon her, whether mental health related or otherwise. Whether she possessed the relevant characteristics or not is irrelevant to her claim of discrimination in that context.
5.14. Finally, one further matter needs to be addressed before proceeding further. At the later hearings of these complaints, the complainant stated that she had mental health issues that gave rise to certain behaviour in certain circumstances, but this issue was not explicitly addressed by her prior to that hearing. While the respondent was aware that she had some mental health issues, there is no evidence that she ever informed it that she had a mental health disability. She never raised the matter with it directly as being something that impacted on her performance, nor did she seek reasonable accommodation for it. More importantly, she never made Mr. A aware that she had such a disability, nor did she suggest to the respondent that his letter should be disregarded for that reason. In all the circumstances of the present complaint, then, this matter cannot be considered relevant to these complaints.
Claim of Victimisation
5.15. In Tom Barrett v Department of Defence4 the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
5.16. Component (i) is not in question in this case. However, the question of whether the complainant's treatment was adverse treatment does arise, as does the question of whether the adverse treatment was a reaction to the taking of a protected act. There are a number of aspects to this as there are a number of actions which the respondent took which the complainant submits were taken because she had undertaken a protected act. I will consider each of these in turn.
Review of complainant's performance
5.17. The first question I have to consider is whether the review that was undertaken of the complainant's performance was victimisation. Leaving aside, for the moment, the question of whether the placing of the complainant on administrative leave was adverse treatment, no sanction has (at least as yet) been imposed on the complainant as a result of the performance review. Equally, however, the kind of review undertaken by the respondent in this respect was beyond the norm, and in that context, there was an emotional and psychological distress attached to the review being undertaken in the first place which, if it was taken as a reaction to a protected act, would certainly constitute adverse treatment on that basis.
5.18. The next question then is: was the review in question undertaken as a reaction to the taking of the relevant protected act? The respondent itself was not entirely clear as to the basis upon which this review was undertaken in that it could not be clear as to the overarching procedure that formed the basis of the review. In any event, it stated that a manager is entitled to review the performance of any individual where they genuinely consider that there is a performance issue, particularly in a job such as the complainant's where vulnerable clients (i.e. children) are at risk. That is beyond doubt and is accepted without reservation.
5.19. However, the complainant put forward the proposition that this was, effectively, a smokescreen and that the real reason for "reviewing" her performance was that she had taken a complaint to the Tribunal and the respondent sought to carry out the review in order to intimidate her in that context. If true, that would be an entirely different matter. However, it is for the complainant to satisfy me that this was the case.
5.20. The labyrinth of policies and procedures applied by the respondent with respect to these complaints are unnecessarily complicated, even for a large organisation such as this one was, and are often contradictory and frequently confusing. Indeed, there is clear evidence that the respondent itself picks and chooses the process under which it carries out any action depending on the circumstances of the case. In saying this, I am not suggesting that it does so to its own advantage; rather, the fact that it can do so says something about the complexity and uncertainty that surrounds these policies. In my view, they are in urgent need of review. Indeed, I am satisfied that they were essentially ignored by Ms. C who undertook to carry out a review of the complainant's clinical performance in the context that she had concerns about it and considered that she was entitled to do so qua her role as the complainant's manager.
5.21. That said, the basis upon which Ms. C took these actions is only important as background to the key question of whether she was influenced by the fact that the complainant had made a complaint to the Tribunal in deciding to carry out the review and/or in the outcome of that review. It is not clear whether the review would have taken place had the complaint by the parent in question (see par. 4.14) been the only complaint made about the complainant. It is clear, however, that the review was undertaken on foot of a complaint that was made by the relevant school principal about a number of issues the school in question had with her.
5.22. I note that the Principal of the school concerned did not wish to proceed with their complaint against the complainant once they became aware of her complaint to the Tribunal. I also note that a serious breakdown in the relationship between Ms. C and the complainant took place long before the complainant applied for the post that is the subject of this complaint. In addition, I prefer the evidence of the complainant with respect to her submission that Ms. C was aware of the complaint to the Tribunal before the review was undertaken. However, the question is whether this knowledge had any bearing on her decision to proceed with the clinical performance review despite the withdrawal of the complaint that was the catalyst for that review.
5.23. In that respect, I note the seriousness of the allegations made. In those circumstances, and in all the other circumstances of the present complaint, I consider that Ms. C was left with no alternative but to proceed with her investigation of the matter irrespective of whether the Principal concerned cooperated with that investigation or not. In that context, I am not satisfied that the actions of Ms. C in this context were motivated by the fact that the complainant had taken a complaint to the Tribunal nor, on balance, does that fact appear to have influenced the outcome of that review. The complainant has failed to establish a prima facie case of victimisation with respect to this aspect of the complaint.
Administrative Leave
5.24. It is clear that Ms. C requested that disciplinary action be taken against the complainant as a consequence of this review. While the respondent stated that there were other issues that informed the decision to place the complainant on administrative leave, I am satisfied that the decision to do so would not have been made had the review not taken place. Therefore, the placing of the complainant on administrative leave was a direct result of this review, which was not related to the taking of the protected act by the complainant. In that context, I am satisfied that the placing of the complainant on administrative leave was, itself, not an act of victimisation. However, there is still a question as to whether the decision of the respondent to keep her on administrative leave pending a resolution of the matters in question is victimisation.
5.25. The respondent submitted that the placing of the complainant on administrative leave per se is not adverse treatment. It is accepted that there is no financial loss incurred. However, there is clearly an emotional and psychological distress attached to it, particularly in the context that there has yet to be a resolution to the issues which led to the administrative leave. Two questions arise from this: firstly, is the reason the respondent has chosen to suspend the resolution of these matters related to the taking of a protected act by the complainant? Secondly, if it is not, is the fact that she remains on administrative leave pending the outcome of the respondent's investigations in this respect related to the taking of a protected act by the complainant (i.e. could it not take her off administrative leave in the meantime)?
5.26. The respondent is in a difficult situation in this respect: If it were to continue with its investigation into the complaints against the complainant and/or the outcome of the clinical performance review, it would run the risk of being accused of victimising the complainant by taking action against her. In that context, it is clear from the evidence that the respondent chose to suspend further investigation into those matters pending the first hearing of the complaint and, subsequently, in order to facilitate mediation, as this course of action had the lesser risk attached. I am satisfied that it took a reasoned and considered decision to do so.
5.27. In some ways, this led to a more stressful situation for the complainant, but it was certainly not victimisation of her. Indeed, the evidence is overwhelmingly supportive of its position that it was well within its rights to proceed with its investigation into her clinical performance. It is also probable that the administrative leave would have concluded had the complaint to the Tribunal already been resolved.
5.28. In that context, I am satisfied, in the peculiar and particular circumstances of the present case, that the reasons why the respondent has chosen to suspend the resolution of these matters are not related to the taking of a protected act by the complainant. Rather, the decision was made by the respondent not to proceed until the complaint to the Tribunal was resolved because proceeding could be seen to be victimisation and because it would have been difficult to do so while the Tribunal hearings were ongoing. (I also fully expect that it was necessary to suspend these matters in order to facilitate mediation discussions, although I cannot know that as I cannot be privy to the nature and/or content of those discussions).
5.29. In that context, it should be said that I would not have taken issue had the respondent continued with its investigation once it did so in an appropriate and reasonable manner and in compliance with fair procedures and natural justice. However, in all the circumstances of the present case, I cannot find fault with the approach it took in this respect as it could not be certain that this would be the position that I would take and so erring on the side of caution (as the respondent saw it) was not an unreasonable position for it to adopt. The complainant has failed to establish a prima facie case of victimisation in this respect.
5.30. With respect to the second question raised at par. 5.25 above, I note that the respondent has sought to take the complainant off administrative leave by offering her an alternative post. It is unfortunate that the complainant has taken a negative view of this offer. While it is far from ideal, in particular in that it is some distance from her home and she is not obliged to take it in that context, I am satisfied that it was a genuine effort on the part of the respondent to return the complainant to work and allow a resolution of the outstanding matters in that context. Therefore, I am satisfied that the complainant would no longer be on administrative leave, irrespective of her case to the Tribunal, had it proven possible to get agreement with her on finding a suitable post for her. She has failed to establish a prima facie case of victimisation in this respect also.
Other treatment
5.31. I am also satisfied that the reference to "building a case" was not an indication of any attempt to 'get at' the complainant. The language certainly left that interpretation open and it might have been better had Mr. G written it in a different way, but, on balance, I do not consider that the complainant's interpretation of its meaning is correct. The complainant has failed to establish a prima facie case of victimisation with respect to this matter also.
Summary
5.32. It is clear that the issues arising in this case stemmed from the mental strain the complainant experienced from working in schools. (This stemmed from her own personal experiences which she outlined at the hearing but upon which it is neither necessary nor desirable to elaborate herein). The complainant did not ultimately claim that the respondent failed to provide her with reasonable accommodation. Nevertheless, it must be said that the respondent has done its best to accommodate her in recent times with respect to her request not to have to work in schools, given that it has very few posts available for speech and language therapists that do not involve such work.
5.33. Clearly, the respondent has come to gain some understanding of the complainant's perspective on her situation, but it did take a considerable number of years for it to do so. The complainant was undoubtedly very difficult to manage. It is also clear that she contributed handsomely to the straining of relationships with her colleagues and managers, in particular Mr. A and Ms. C. However, the individuals concerned, and the respondent as a whole, were not entirely without fault in that respect and the respondent, at certain times, could have shown the complainant more sympathy and tolerance. However, having considered all the circumstances of the present case as they are known by me from the evidence gathered in the course of my investigation into the matter, it did not discriminate against her, nor did it victimise her. Consequently, her complaint fails.
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, 1998 to 2008:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the disability ground pursuant to section 6(2)(g) of the Acts in terms of promotion/re-grading, contrary to s.8(1)(d) of the Acts.
6.3. I find that the complainant has failed to establish a prima facie case that the respondent victimised her in terms of Section 74(2) of the Acts.
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Gary O'Doherty
Equality Officer
9th November, 2012
1 DEC-E2011-080
2 Cast v Croydon College, Court of Appeal [1998] IRLR 318
3 DEC-E2011-114
4 EDA1017