Employment Equality Acts
Decision DEC-E2013-033
PARTIES
An Employee
(Represented by O'Mara Geraghty McCourt, Solicitors)
-V-
A Safety Training company
File reference: EE/2010/756
Date of issue: 26 April 2013
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Victimisatory Dismissal - Disability - Failure to provide appropriate measures (Reasonable Accommodation) - Prima Facie case - Rebutted Inference
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that she was subjected to discriminatory treatment, discriminatory dismissal, harassment and victimisatory dismissal by the respondent on the grounds of her disability in terms of Sections 6(2) and 74 of the Employment Equality Acts and contrary to Section 8 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 21 October 2010 under the Employment Equality Acts. On 11 October 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 29 January 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. PRELIMINARY ISSUE - TIME LIMITS
2.1 As part of their closing submissions at the hearing of this complaint, the respondent contended that many of the elements of the complaint that relate to 2008 are out of time being outside the six months timeframe envisaged by the Acts.
2.2 I note from the complainant's written submissions, specifically an event log that she kept, that she deals with two separate time periods: the first relates to the period May 2008 onwards for a number of months, the second relates to the period from May to August 2010. However, during the course of the complainant's oral evidence, she provided additional details linking the matters together.
2.3 Having regard to the foregoing, I have formed the opinion that these matters are linked and, in the circumstances of this case, it is appropriate for me to consider the earlier incidents.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant submitted that she was employed by the respondent, initially as an Operations and Training Assistant and more recently as a Clerical Assistant from 22 April 1996 and that until 2008 there had been a good working relationship.
3.2 The complainant submitted that in or around May 2008, she spotted a mouse in the office (which is a small timber-framed building adjacent to the proprietor's home). Mouse traps were installed by the General Manager, Mr X. A number of days later the complainant spotted a mouse on the desk in front of her. She left the office and informed the MD that she could not return to work until the problem was resolved. Thereafter, she was absent from work from 3 June 2008 until 7 August 2008 on certified sick leave, citing stress-related symptoms. The complainant wrote to the Managing Director, Mr Y, on 9 June 2008.
3.3 The complainant submitted that the steps undertaken by the respondent to address the rodent problem were entirely inadequate and she submitted an incident log detailing events occurring between May 2008 and 12 August 2010.
3.4 The complainant submitted that on 29 July 2010 a large rat walked past her as she stood outside the office and she became hysterical. She was unable to enter the premises and took some belongings and files with her in order to work from home. The complainant wrote to the Managing Director requesting that the matter be addressed as a matter of urgency.
3.5 The complainant submitted that despite her requests, the respondent declined to engage a professional company to address the problem. When the complainant attended her workplace on 3 August 2010, there was a strong smell of dead rodents and the complainant was informed that poison had been laid to address the matter. The complainant also submitted that the respondent was entirely unsympathetic, shouted at her and told her to open a window.
3.6 The complainant submitted that she left the workplace and attended her doctor. The doctor diagnosed ongoing phobic anxiety with associated post traumatic stress. He recommended that she seek to resolve the work situation, if necessary with legal assistance.
3.7 The complainant submitted that the respondent wrote to her on 25 August 2010 and sought a meeting with her to discuss her return to work. The complainant's legal representative wrote to the respondent on 2 September 2010 seeking to enforce her entitlements under Equality Legislation. The complainant submitted that the respondent acknowledged this letter but there was no further communication received from them. Salary payments ceased on 30 September 2010.
3.8 The complainant submitted that on 7 October 2010 the respondent wrote to her purporting to terminate her employment on grounds of redundancy with an effective date of 5 November 2010. The complainant further submitted that this was a sham redundancy and was penalising her for seeking to enforce her statutory rights.
3.9 The complainant submitted that she has a disability for the purposes of the Acts in that she suffered from anxiety and psychological stress and, in particular, had a phobia of rats. The complainant submitted that this is confirmed in the medical report of her GP.
3.10 The complainant submitted that she was harassed by the respondent when the Managing Director shouted at her on 29 August 2010.
3.11 The complainant submitted that the respondent also victimised her when they ceased paying her sick pay on 13 September 2010.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent submitted that the complainant was originally employed with them as an Operations and Training Assistant between 1996 and 2002. She then returned to the company as a Clerical Assistant in September 2005. The respondent noted that the complainant has a very good working relationship with the Directors and General Manager over the years.
4.2 The respondent submitted that the rodent problem was not present to any great extent during the early stages of the complainant's employment and only really became a problem when the building programme in the area commenced as there was major upheaval with the construction of a large retail park on adjacent land.
4.3 The respondent submitted that, having regard to its size, it took all steps within its remit to deal with this problem - it installed an electronic repellant system, and at a later stag, July 2010, employed an experienced exterminator, who laid traps and poison. It would be impossible to entirely eliminate rodents from the countryside and that in relation to this issue it had to strike a balance between what is economically possible and what became an unreasonable expectation on the part of the complainant.
4.4 The respondent submitted that it provides safety training in relation to marine and water based hazards. However, during the last number of years a number of major clients had reorganized the provision of their training and the respondent had lost out on several big contracts. The respondent outlined the how trading conditions that it has operated in over the last few years have become very challenging, resulting in receiving notification from the Accountants that the firm had made a loss.
4.5 While the complainant was out on sick leave, a part-time clerical assistant was used to provide cover for four hours a day and it became apparent that there was not enough work to occupy someone for even those short hours. The respondent submitted that it was on the basis of its loss-making trading position and the lack of work that it made the complainant redundant.
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 and a failure to provide reasonable accommodation on grounds of his disability, in terms of Sections 6 and 16 of the Employment Equality Acts, and contrary to Section 8 of those 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.
Notice of a Disability
5.3 Section 2 of the Acts defines disability as
(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;
5.4 At the hearing of this matter the complainant outlined, in some detail, the impact that her phobia of rats has on her thought processes and on her emotions. In addition, a copy of a medical report (dated 21 January 2013) from her Consultant Psychiatrist, Dr A, was also presented. This outlined that the complainant suffered from a common phobia known as musophobia or murophobia. Furthermore, the complainant submitted a medical report from her GP, Dr B, (dated 29 April 2011) outlining that the complainant had no pre-existing condition but identifying that she suffered from 'ongoing phobic anxiety, with associated post-traumatic stress'.
5.5 In oral testimony, Dr A stated that she diagnosed musaphobia/muraphobia in January 2013 and outlined that it is one of the commonest phobia's and is an irrational fear of something (in this case rats) which is out of proportion. Dr A stated that Dr B was a very experienced GP who was well qualified to treat and make a diagnosis of mental illness. Although Dr B certified the complainant unfit for work he noted that stress or work stress was the cause on at least fourteen occasions. Neither Dr A nor Dr B made a diagnosis of musaphobia/muraphobia prior to the complainant finishing up in working relationship with the respondent.
5.6 The complainant gave evidence, supported by written documentation, that she informed the respondent that she had a phobia of rats. In response, the General Manager (Mr X), gave evidence that he considered that she referred to a 'colloquial interpretation of phobia' and that she was afraid of rats and mice 'like most ladies are' and that she had not explained the impact of her phobia with the level of detail given in oral evidence. The complainant's letter of 29 July 2010 was framed in a Health and Safety context and while it is possible to consider that Mr X did not recognise the existence of a disability under the Acts, it is difficult to reconcile his comments with the content of that letter wherein the complainant stated "It frightened me to a hysterical state as I have a fundamental fear of rats which I have highlighted before ... I told (X) I was sick of the rat situation and that it was affecting me and affecting my work capability".
5.7 Notwithstanding the fact that the complainant had submitted a number of medical certificates, none of which referred to the specific medical condition of musaphobia or muraphobia, on balance, I consider that the respondent was on notice of the existence of a disability as the level of detail provided by the complainant demonstrates that she was not referring to a phobia in the colloquial sense, but rather was detailing the effects of her 'fundamental fear' on her thought process, emotion and ability to undertake her work. Accordingly, I consider that the respondent was on notice of the existence of a disability from the date of the complainant's letter, i.e. 29 July 2010.
Reasonable Accommodation/Appropriate Measures
5.8 The letter of 29 July 2010 went on to outline what measures the complainant was seeking. She looked for the respondent to implement a pest prevent(sic) strategy, document the strategy, risk assess the work environment and monitor that the strategy is working correctly. In it's response, dated 25 August 2010, the respondent confirmed that a number of steps had been undertaken to eliminate any possible risks or hazards and that further and updated measures had been implemented to eliminate/minimise as much as possible any such risk into the future. The respondent invited the complainant to contact them to arrange to discuss matters further at the company premises or elsewhere. The complainant's representative responded by stating that the complainant had sought the involvement of a named pest control service which the respondent declined to pay the fees for and stated that this was completely unacceptable. The complainant went on to say that all trust and confidence with the employer had broken down but that she was prepared to meet with them.
5.9 During the hearing, the respondent accepted that there was a rodent problem, indicated the nature of the site and outlined the measures it had taken to deal with this matter. It had initially installed traps and a sonic repellent device. As the property was also a family home with pets and other wildlife, it chose this course of action first. This was followed up with leaving ferret droppings around as a deterrent. Ultimately it had laid poison and whilst this worked in that the rodents died, it also gave rise to another problem in that some of the decaying corpses began to smell but could not be found and on the occasion when a rat walked past the complainant, it was already dying. The respondent submitted that although it had not received an invoice from the named pest control service, it had received an oral quotation approaching two thousand pounds which it considered too high. The respondent then engaged an experienced exterminator to lay the traps and poison and started keeping a log regarding sightings and the levels of poison involved. The respondent also indicated that it had made a car space available to the complainant that was closer to her office and also that when she requested someone to accompany her into or out of the office, another staff member did so. In addition, when the complainant made reference to rodent droppings in a container, she was informed that there was no need for her to get any equipment out of that container and that someone else would do so in future. The respondent noted that the site was a large site, located in the countryside in an area that had recently undergone quite an amount of building work in the recent past and that it was not possible to eradicate rodents completely in such circumstances.
5.10 In the oral and written evidence presented to me, the complainant outlined the measures that she thought were appropriate for the respondent to undertake to enable her to return to work. The respondent outlined the measures that it undertook and how it considered that these were appropriate. It became clear that the complainant wanted nothing less than a named pest control company to deal with the matter. Having considered the evidence from both parties, I find that although the respondent did not provide the measures that the complainant wanted, it did provide measures to address the problems raised. In the circumstances outlined by the respondent regarding the nature of the problem, the extent of the site, the dual nature of the plot of land, and the financial circumstances pertaining to the company at that time, I consider that the measures were reasonable. In that regard, the respondent has not failed to provide appropriate measures.
Harassment
5.11 Section 14A (7) (a) of the Acts, inter alia, defines harassment as
"any form of unwanted conduct related to any of the discriminatory grounds ... being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person"
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
5.12 The complainant submitted that she was harassed on 3 August 2010 when Mr Y shouted, screamed and raised his voice to her regarding the smell of the rodents. During oral testimony, the complainant stated that although it was 'not in his nature', Mr Y did shout at her. During his testimony, Mr Y admitted that they had heated words, but denied shouting at her. On balance, I prefer the respondent's version of events and accordingly, do not find that the complainant was harassed in accordance with Section 14 of the Acts.
Victimisation
5.13 The complainant suggested that she was victimised for taking a complaint in that she raised the issue of a breach of the Acts with the respondent on 2 September 2010 and her sick pay was stopped on 13 September 2010
5.14 Section 74(2) of the Acts defines victimisation as follows:
(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to --
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
5.15 I note from the written submissions that in its correspondence dated 25 August 2010, the respondent flagged to the complainant that it would have to place her on unpaid sick-leave and gave her two weeks notice of this fact. In the circumstances, I do not consider that ceasing to pay the complainant sick-leave payments can constitute victimisation as defined in the Acts.
Dismissal
5.16 The complainant submitted that her redundancy was she was a sham and that dismissed on the basis of her disability and/or that she was dismissed on the basis of raising a compliant under the Acts (i.e. victimisation).
5.17 From the evidence before me, the following facts emerge:
- The respondent was now in a loss-making position and this was notified to it in August 2010 when the Directors went to the Accountants to sign the annual financial reports.
- On 18 August, the directors charged the General Manager, Mr X, with documenting where costs could be saved
- The respondents engaged cover for the complainant (who was on leave) on a part-time basis of four hours per day
- It became apparent that the respondent did not have enough work to keep someone occupied for even four hours per day
- The Auditors submit the financial accounts to the directors on 10 September, confirming that the respondent is currently review expenditure
- Following a period of Annual Leave, Mr X submits a detailed breakdown of areas where the respondent can maximise revenue and minimise costs (5 October 2010) noting the lack of income and the lack of work to keep someone occupied even on a part-time basis. The issue of redundancy is raised in the review
- On 6 October 2010, the Managing Director concurs with the General Manager's view that that they cannot afford to keep on the administrative role. The decision to make the position redundant is notified to the complainant on 7 October 2010
- There are only three employees with the company, two of which are income generating, Mr X and Mr Y
5.18 From the evidence before me, I consider that no facts have been raised to support the inference of discriminatory dismissal and this element of the complaint fails.
5.19 From the evidence before me, I consider that facts have been raised from which an inference of victimisatory dismissal may be inferred, accordingly the onus shifts to the respondent to rebut that inference.
5.20 From the written and oral evidence before me, particularly the profit and loss accounts covering 2007, 2008 and 2009 which have been presented to me, I deem the respondent to have rebutted that inference, and this element of the complaint fails.
6. DECISION
6.1 Having considered all the written and oral evidence presented to me, I find that the complainant has not established that the respondent has failed to provide appropriate measures (reasonable accommodation) 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 that she was subjected to harassment as defined in the Acts 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 that she was subjected to discriminatory treatment/dismissal and this element of the complaint fails.
6.4 Having considered all the written and oral evidence presented to me, I find that the complainant has not established that she was subjected to victimisatory treatment/dismissal and this element of the complaint fails.
Conor Stokes
Equality Officer
26 April 2013