DEC-E2013-188

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC-E2013-188

Mr L

versus

A Medical Technology Enterprise

(represented by Irish Business and Executive Confederation)

File reference: EE/2011/670

Date of issue: 20th December 2013

Keywords: Employment Equality Acts, Disability, Race, Post Polio Syndrome Reasonable accommodation, Conditions of employment,

Dispute

1.1 The case concerns a claim by Mr L against a medical technology enterprise. His claim is that he was discriminated regarding his conditions of employment on the grounds of disability (Post Polio Syndrome) and race (Nigerian) in terms of 6(2)(g) and (h) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as ‘the Acts’]. He also claims that the respondent failed to provide appropriate measures that would allow the complainant to continue to be employed as a Process Operator. The complaint of victimisation was withdrawn at the hearing.

1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 22nd September 2011. On 28th May 2013 in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 10th June 2013 as required by Section 79(1) of the Acts.

Summary of the complainant’s case

2.1 The complainant was employed on a temporary basis in September 2006. He was made permanent as a Manufacturing Process Operator on 1st April 2008. On 21st April 2011 he approached Mr Z (his line supervisor) with a request to meet with the company’s Occupational Health Advisor (OHA) in relation to the pain he was experiencing as a result of standing while working on a new production cell since 1st April 2011. He submits that this production cell requires standing for a whole shift. The complainant acknowledges this meeting was set up for the following day. He had polio as a child and suffered problems with his right leg since then. Following the health examination, The OHA sent an email to Mr Z:

…I carried out a clinical examination which confirms an imbalance in right leg. I am of the opinion that he has a genuine difficulty.

I feel this gentleman would find it significantly easier if he had a job which would allow him to sit for some of his work tasks.

Mr Z replied:

Thanks [OHA] for seeing him, reading your email I would take that we would be better off to pull him out of the U shape as the majority of the working day would be spent on his feet

Mr Z did not move him to a seated work position until 2nd May. On 3rd June Mr Z beckoned to the complainant to work in a standing production cell. The complainant submits that is an act of harassment.

2.2 He submits that Mr Z ‘accidentally on purpose’ lost his request to bank hours i.e. to use overtime as time in lieu rather than payment. Mr L also submits that his annual review was negatively impacted because he asked for a move. He received a 3 out of 5 rating – Successful contributor. Mr L made a complaint about Mr Z’s behaviour to Mr Z’s supervisor - Mr Y. The complainant and Mr Y (Production Manager) had a meeting to discuss his grievance on 14th June. Mr L submits that Mr Y did not take his complaint seriously.

2.3 Mr L also sought to withdraw his trade union membership. His employer and a trade union had a ‘closed shop’ agreement i.e. trade union membership is part of his terms and conditions of his permanent employment. He submits that this is discriminatory as permanent workers are treated less favourably than temporary workers. He submits that Mr X (Senior HR Manager) told him that if he wishes to withdraw from the trade union, he should look for employment elsewhere. He submits that this is victimisation.

Summary of the respondent’s case

3.1 The respondent is a multi-national enterprise which manufactures medical devices. When Mr O became a permanent employee in 2008, he did not object to the contractual requirement that he becomes a paid-up member of this trade union. It was only three years later that he raised an objection

3.2 In relation to the series of events at 2.1, Mr Z announced the names of the people (including Mr L) selected to work in the first U-shaped cell. The respondent submits that it was perceived as an honour to be asked as the most versatile and reliable operators were the ones selected. At this meeting he said if anybody thought that it would not be suitable for him/her to let him know (confidentially). Mr L seemed pleased to work in this new station and completed two weeks of training. However, on 21st April Mr L requested to be moved off the cell and Mr Z suggested he attend the OHA. Mr Z submits that he checked with the OHA whether Mr L should be moved immediately. She said it was not necessary. Mr Z maintains that he explained to Mr L that it would take a week before he was moved as an other operative would have to be trained up. He was moved within five working days. After that he was only asked to work three times in a standing-up cell. This was consistent with the medical advice the respondent received; it was only if Mr L remained standing for long periods on a regular basis that there would be negative implications. The respondent also points out that the complainant never declared post-polio syndrome when he was medically examined prior to becoming a permanent employee.

3.3 Mr Z has 45 people reporting into him. Regarding the incident at 2.2 he said that either he or his direct report lost the post-it note with the request to bank hours on it. He submits that no malice was intended.

3.4 Regarding Mr L’s rating of 3 out of 5, this is regarded as very good. In the narrative part he was described by Mr Y as ‘[Mr L] is a strong member of the team here on the integrity lines. He is well liked by his peers and is always willing to do his share of the overtime when needed. Thanks for your hard work over the last 12 months and looking forward to working with your into this year’. The respondent submits that this is a very favourable review.

3.5 In his report of the grievance meeting, Mr X said ‘It is a condition of employment that Ola is a member of the union. If he wishes to leave the union he must resign his position with [respondent].’

3.6 The complainant has been out of work on certified sick leave since 18th July 2011. He is on the company-sponsored income continuance plan. The respondent met with the complainant on 11th June 2012 to discuss whether there was potential for him to return to work. Mr L could not make any suggestions regarding reasonable accommodation and wished to remain on income continuance.

Conclusions of the Equality Officer

4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory grounds in this case are disability and race. Therefore, the issues for me to decide are

(i) whether the respondent failed to provide reasonable accommodation in order to enable him to continue to work with the respondent

(ii) whether the complainant was discriminated regarding his conditions of employment on the grounds of disability and race

(iii) whether the complainant was victimised within the meaning of Section 74 (2) of the Acts

In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.

Reasonable accommodation

4.3 Reasonable accommodation is defined in Section 16(3)

(3) (a) For the purposes of this Act a person who has a disability

is fully competent to undertake, and fully capable of

undertaking, any duties if the person would be so fully

competent and capable on reasonable accommodation

(in this subsection referred to as ‘‘appropriate

measures’’) being provided by the person’s employer.

 

(b) The employer shall take appropriate measures, where

needed in a particular case, to enable a person who has

a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate

burden on the employer.

(c) In determining whether the measures would impose such

a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s

business, and

(iii) the possibility of obtaining public funding or other

assistance.

4.4 The seminal case regarding reasonable accommodation is A Health Club and A Worker:

This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.

The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions. [my emphasis]

4.5 I find that the respondent complied with this two-step process outlined in this Labour Court determination. As soon as Mr L complained that he found being on his feet difficult in the new production cell, he was sent to the respondent’s Occupational Health Advisor. She recommended that he sit for some of his work tasks. Within five working days he was moved to a different cell and only three times in two months was he asked to work in a standing production cell. After he went out on sick leave, the respondent met with him to see did he have any suggestions about how he could return to work. However, in that meeting, he said he preferred to remain on the income continuance plan. I find that the respondent can fully avail of the defence in Section 16.

Conditions of employment

4.6 Regarding conditions of employment, Section 8(6) of the Acts states that an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee the same treatment [my emphasis] in relation to overtime, shift work, short time, transfers, layoffs, redundancies, dismissals and disciplinary measures as the employer offer or affords to another person where the circumstances in which both such persons are employed are not materially different.

4.7 Regarding the incident at 2.2 and 3.3, I accept the respondent’s evidence that the instruction was mislaid. The complainant did not suffer a loss as it was corrected. Similarly 3 out of 5 is a good rating by any standards. Pay was not linked to these performance ratings. Neither do I accept that his grievance was not taken seriously. All the evidence points in the other direction.

4.8 Trade union membership was a condition of his employment. All permanent employees are required to join the specified trade union. Mr L submits that a closed shop agreement is unconstitutional and in contravention of the European Convention of Human Rights and the Protection of Employees (Fixed Term) Act 2003. For me to investigate whether he is correct would be acting ultra vires. I merely have jurisdiction to examine whether there is a nexus between compulsory trade union membership and his race and/or disability and whether he was treated less favourably as a result. As all permanent employees, irrespective of disability or race, are required to join this trade union, I find that there is not a nexus.

4.9 Therefore, the complainant has failed to establish a prima facie case of discrimination treatment regarding his conditions of employment.

Victimisation

4.10 Section 74 (2) of the Act states victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.

4.11 In the circumstances of this case, to establish a case of victimisation under these Acts, Mr L has to demonstrate that (i) it was a result of making a complaint of discrimination to the respondent and (ii) the treatment was adverse. I am satisfied that the complainant fulfils the part of this test in that he raised the issue of being asked to stand when he suffered from post-polio syndrome as a formal grievance. At the meeting to discuss this grievance it is common case that Mr X said that if Mr L wishes to leave the union he must resign his position with the respondent I do not find this treatment to be adverse. I accept the respondent’s contention that Mr X stated the reality of the situation in a cordial, non-threatening way. Therefore, the complainant has failed to establish a prima facie case of victimisation.

Decision

I have concluded my investigation of Mr L’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that

(i) the respondent has not discriminated against the complainant on the grounds of disability or race regarding his conditions of employment

(ii) the respondent has not failed to provide appropriate measures that would allow the complainant to continue in his role as a Process Operator

(iii) the complainant was not victimised within the meaning of 74(2) of the Acts

Therefore, I find against the complainant.

______________

Orlaith Mannion

Equality Officer