The Equality Tribunal
Employment Equality Acts
Decision DEC-E2012-165
PARTIES
An Employee
(Represented by Hennessy & Perrozzi)
- V -
A Respondent
File reference: EE/2008/761
Date of issue: 29 November 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Harassment - Gender - Disability - Failure to provide Reasonable Accommodation - Timelimits
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that she was subjected to discriminatory treatment, harassment and victimisation by the respondent on the grounds of her gender and disability in terms of Section 6(2) of the Employment Equality Acts and contrary to Sections 8 and 74 of those Acts and that the respondent failed to provide reasonable accommodation as provided for in Section 16 of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 13 November 2008 under the Employment Equality Acts. On 9 January 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 10 May 2012. Additional information was received from the parties up to 14 August 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. PRELIMINARY ISSUE - Extension of Time limits
2.1 The complainant sought and received an extension of the time limits under Section 77(5)(b) of the Acts in a direction issued by the then Director of the Equality Tribunal on 20 August 2009.
2.2 Arising from that direction and on the basis of the available written submissions the complaint was assigned to an Equality Officer for investigation and a decision
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant submitted that she was employed by the respondent from 7 August 1979 and that she carried out two roles, administrative work for the engineering department in the morning and administrative work for another department in the afternoon. The complainant submitted that she had informed the respondent that she was overworked and that a full time position was necessary in the engineering section.
3.2 The complainant submitted that the discriminatory behaviour and victimisation which she was subjected to as a result of her disability was set out to the respondent through a formal complaint made on 20 February 2006. This complainant was not deemed well founded by the respondent either at first instance or on appeal.
3.3 The complainant submitted that she exhausted all internal avenues of dealing with her complainant and does not accept that her grievances were unfounded. The complainant further submitted that the complaint was not adequately investigated and was dealt with in a deficient and negligent manner.
3.4 The complainant submitted that throughout her employment with the respondent she was subjected to unacceptable derogatory comments and behaviour from her managers and colleagues which was clearly related to her gender and disability. The complainant further submitted that she first began experiencing difficulties in January 1999 following her hospitalisation as a result of a period of elation. The complainant submitted details of a number of specific incidents from the period up to September/October 2007.
3.5 The complainant submitted that she believes that since these earlier difficulties, it has been the respondents objective to push her out of her job and that this is not mere speculation. The complainant also submitted that the facts of this case give a real basis for her belief that the respondent's refusal to accommodate her disability was designed to force her to resign or be deemed incapable of doing her job.
3.6 The complainant submitted that following the failed appeal to the respondent, she felt that there was no point in continuing to make complaints and saw no alternative but to leave the company in order to protect her health from further stress induces episodes as a result of the hostile environment she had been forced to endure on a daily basis.
3.7 The complainant submitted that the previous behaviours of the respondent are manifestations of the same disposition to discrimination and citing the Labour Court case of Department of Health & Children and John Gillen (EDA0412) quoted
"The complainant's complaint is that after he had reached the age of fifty he was no longer considered by the appellant as being suitable for promotion purely on age grounds. On each occasion he competed, he was rejected by the appellant on the grounds that he was over fifty years of age. The Department submits that if the complainant is correct (which it does not accept) then he was subjected to two separate and distinct acts of discrimination, in two separate and distinct competitions by two separate bodies
In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground."
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent denies each of the allegations of discrimination and made detailed submissions relating to each specific allegation identified by the complainant to that effect.
4.2 The respondent submitted that the preliminary decision of the Tribunal under Section 77(5)(b) extended the reference period for lodging a complaint in the instant case to 12 months. The complainant's case was referred to the Tribunal on 11 November 2008. Accordingly, the complainant must show that there was an act of discrimination or victimization within the 12 month period up to that date. The complainant was continuously absent from work from 31 August until 16 November 2007, the date upon which her employment formally terminated by virtue of her application to retire early on grounds of ill-health (that application having been made on 25 September 2007).
4.3 The respondent further submitted that the complainant refers in her submissions to unspecified acts of discrimination on 11 November 2007 and then separately to unspecified exposure too work-related stress up to 16 November 2007. The respondent submitted that no act of discrimination in the 12 months prior to the lodging of the claim has been identified by the complainant and therefore the complaint is out of time.
4.4 The respondent submitted that the complainant retired on 16 November 2007 on the grounds of ill-health arising from her longstanding medical condition. She did not attend in the workplace on that day and, in fact, had been on paid sick leave from 31 August 2007 and did not return to her workplace prior to her formal retirement date. Retirement on this basis is not granted lightly. The respondent must be satisfied that the staff member is incapable from infirmity of mind or body of discharging the duties of her post and that infirmity is likely to be permanent. Medical evidence from the staff member's doctor is required and must be confirmed by the respondent's medical adviser, a procedure which was followed in this instance. At no stage in this process was reference made to retirement as a result of the complaint of discrimination or that the complainant was in any way victimized.
4.5 The respondent submitted that the complainant alleges that there was a failure to reasonably accommodate her disability. However, no evidence has been put forward to indicate that any particular accommodations were sought by her or which should have been obvious to the respondent which were not addressed. The respondent further submitted that the complainant appears to base her case on the failure to provide reasonable accommodation around a series of alleged incidents rather than on any disability-related issue which affected her ability to perform her job.
4.6 The respondent submitted that the complainant lodged a formal complaint under its anti-harassment and bullying policy in February 2006 which was investigated in accordance with its procedures (which had been previously established following extensive consultations with staff representatives) and appealed the findings of that investigation, as was her right. The respondent submitted that the complainant was not happy with the outcome of the procedure
5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment, harassment and victimisation in terms of Sections 6 and 74 of the Acts and failed to provide appropriate measures on grounds of her disability, in terms of Section 16 of the Acts.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 At the start of the hearing the complainant's representative confirmed to the Equality Officer that the complaint being pursued related to victimisation, harassment and a failure to provide reasonable accommodation on the Gender and Disability grounds, the disability being Bi-polar disorder.
5.4 Over the course of the hearing it became apparent that the employment relationship came to an end on 16 November 2007. As noted above the complainant made her complaint to the Tribunal on 13 November 2008. Therefore, the appropriate period under consideration relates to the twelve month period prior to that date. It has been established that complainant was not in the work environment after 31 August 2007. No evidence of less favourable treatment or victimisation has been put forward by the complainant during that period other than that she sought appropriate measures to enable her to continue in her employment, these were denied to her and that accordingly she was left with no choice but to resign on grounds of ill-health. The employment relationship came to an end on 16 November 2007 and the complainant suggested that it was this chain of events that brings her complaint within the ambit of the Acts.
5.5 In support of the foregoing, the complainant cited the Labour Court case of Department of Health & Children and John Gillen (EDA0412) and quoted
"The complainant's complaint is that after he had reached the age of fifty he was no longer considered by the appellant as being suitable for promotion purely on age grounds. On each occasion he competed, he was rejected by the appellant on the grounds that he was over fifty years of age. The Department submits that if the complainant is correct (which it does not accept) then he was subjected to two separate and distinct acts of discrimination, in two separate and distinct competitions by two separate bodies
In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground."
5.6 Having regard to the Labour Court decision cited above, in order to succeed in this case, the complainant must establish that the act of retirement on grounds of ill-health constituted discrimination, victimisation or harassment. With that in mind there are two issues which arise: primarily, it is particularly relevant when and how the complainant sought appropriate measures to enable her to continue in employment and the manner in which her retirement was sought, and thereafter if this amounts to less favourable treatment, then is it connected to any earlier treatment, i.e. is there a chain of events.
5.7 The complainant sought to retire on grounds of ill-health on 25 September 2007 and during the hearing gave evidence of having sought reasonable measures from the respondent in that she sought a physical move from one office to another earlier in the year. Responding to questions put to her, the complainant clarified that she herself did not seek the move but that the respondent's medical adviser sought this move on her behalf. As per her evidence, the only possible time when appropriate measures may have been sought on the complainant's behalf, is when it is alleged that the respondent's doctor sought to have the complainant moved. A number of issues arise on the basis of this allegation, firstly, the only evidence put forward to support this allegation is a second-hand account of a conversation allegedly had by the respondent's medical practitioner with it seeking to move the complainant. This allegation was consistently denied by the respondent throughout and is unsupported by any oral or documentary evidence despite there having been more than ten medical reports and certificates submitted to me along with a large amount of correspondence. Secondly, I note that no reason is given as to why or on what medical basis, the doctor would have sought this move nor how this move would have enabled the complainant to be fully capable of fulfilling her duties. Therefore, having regard to all the evidence presented to me and in the circumstances, I am persuaded by the respondent's arguments in this regard.
5.8 In addition, I note from the evidence given to me that the only occasion when it was claimed that the complainant was not in a position to fully undertake her role was in the application for retirement on grounds of ill-health. This application was drafted by the complainant's doctor, endorsed by the respondent's doctor and resulted in a more favourable retirement package for the complainant. In these circumstances it is difficult to see how the complainant was treated in a less favourable manner than anyone else or indeed, how this amounts to a failure to provide reasonable accommodation.
5.9 As regards the application to retire on grounds of ill-health, it was agreed in evidence that the complainant had sought figures for this option on a number of occasions during the course of her employment. Having considered the contents of the application to retire, the complainants sick leave pattern, and the numerous medical reports submitted to the Tribunal, I am not satisfied that the weight of the evidence supports the complainant's contention that she was effectively forced to take this option.
5.10 Accordingly, I cannot find that her decision to retire on grounds of ill-health amounts to a fact from which discriminatory treatment, harassment or victimisation may be inferred. As the complainant has not established that she was less favourably treated in the twelve months prior to submitting her complaint, this complaint must fail.
5.11 It is important to note that in the original complaint form, the complainant did not indicate that she wished to pursue a case of discriminatory dismissal; in her substantive written submission she did not make out a case for dismissal; and indeed, at the outset of the hearing of this matter and in response to a direct question from the Equality Officer, the complainant's legal team confirmed that they were only seeking to establish a complaint of discriminatory treatment, harassment and victimisation.
5.12 No evidence of less favourable treatment was presented to me relating to the Gender ground.
6. DECISION
6.1 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facie case of discriminatory treatment on either the Gender or Disability ground and this element of the complaint fails.
6.2 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facie case of harassment on either the Gender or Disability ground and this element of the complaint fails.
6.3 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facie case of victimisation under the Acts and this element of the complaint fails.
______________________
Conor Stokes
Equality Officer
29 November 2012