DECISION NO: DEC-E/2013/006
PARTIES
AN EMPLOYEE
(REPRESENTED BY MS. SIOBHÁN PHELAN BL INSTRUCTED BY
THE EQUALITY AUTHORITY)
AND
A MEDICAL CLINIC
(REPRESENTED BY MR. DES RYAN BL INSTRUCTED BY IBEC)
File No: EE/2009/408
Date of issue: 5 February, 2013
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8, 14A & 16 - disability - discriminatory treatment - dismissal - harassment - reasonable accommodation - failure to engage with employer - disclosure of relevant information.
1. DISPUTE
This dispute involves a claim by the complainant that he was (i) discriminated against by the respondent on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts, (ii) harassed by the respondent on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 14A of those Acts, (iii) dismissed by the respondent in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts. The complainant also claims that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008. The respondent rejects the complainant's assertions in their entirety.
2. BACKGROUND
The complainant was employed by the respondent as a Staff Nurse from June, 2008 until June, 2009. He asserts that during his period of employment he was treated in an unlawful manner by the respondent contrary to the Employment Equality Acts, 1998-2008. The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 23 June, 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 30 September, 2011 - the date it was delegated to me. Submissions were received from both parties and a Hearing on the matter took place on 23 January, 2012, 16 February, 2012 and 29 February, 2012.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he commenced employment with the respondent as a Staff Nurse on 23 June, 2008. He adds that he suffered a perforation of his eardrum as a child and although he underwent tympanoplasty he is susceptible to infection, a consequence of which is deterioration in his hearing on occasion. He submits that this amounts to a disability in terms of section 2 of the Acts. He accepts that he did not disclose his condition on the pre-employment medical questionnaire given to him by the respondent and states that he adopted this approach because (i) he did not consider it an illness and (ii) he had worked for several years as a nurse and his hearing did not present a problem. In the course of the Hearing however the complainant stated that he had merely forgotten his operation when completing the questionnaire. He states that the questionnaire did not contain a specific question about his hearing and had that been the case he would have answered it. He points to a similar pre-employment medical questionnaire which he completed subsequent to his employment with the respondent wherein he declares his partial hearing in his right ear because a specific question was asked. He therefore rejects the respondent's assertion that he deliberately attempted to mislead the respondent in completing the pre-employment medical questionnaire. Moreover, it is submitted on his behalf that the use of such questionnaires can give rise to an inference of discrimination unless it can be shown that the information sought is necessary to determine the capability of a prospective employee to perform certain duties or to assess accommodations which might be needed for a new employee with a disability. The complainant submits that the questions posed were wide and non-specific and were supposed to be completed by a medical practitioner contracted by the respondent - and this did not happen. It is further submitted that the respondent did not use the pre-employment medical questionnaire in a proper manner and used it as an instrument of discrimination against the complainant.
3.2 The complainant states that he enjoyed his work and his employment was uneventful until 3 March, 2009. He states that on that date his immediate Line Manager (Ms. J) asked him to push a trolley with her and as he did not hear her - he adds that she is a mild spoken person generally and he was suffering from a blocked sinus that day which impacted on his hearing - he failed to assist her. The complainant further states that later that day Ms. J asked him why he had not assisted her and he apologised to her, stating he had not heard her and informed her of his hearing impairment. In the course of the Hearing the complainant confirmed that this was the first occasion he had disclosed his hearing impairment to anyone in the respondent's Management.
3.3 The complainant states that within a week of this discussion with Ms. J he was called to a meeting which was attended by Ms. J, the respondent's Director of Nursing (Ms. M) and Ms. G (the respondent HR Manager). The complainant further states that during this meeting he was asked about his hearing impairment and he replied it was caused by infection due to climatic changes and that the problem had existed since November/December, 2008. In the course of the Hearing the complainant stated that he did not advise them it had existed since childhood because he was "not happy to do so". The complainant adds that he advised them he was meeting a Consultant about his hearing difficulty and he was requested to furnish a letter from his Consultant or GP outlining his hearing condition. The complainant states that he wrote to Ms. G on 17 March, 2009 advising that his hearing loss was due to infection caused by climatic change adding that his hearing in the other ear was perfect and he felt he would have no difficulty communicating with colleagues and patients. He adds he also advised in this letter that he made efforts to obtain an appointment and hearing test with his Consultant, Mr. X, but that the earliest appointment he could get was two months away. He further states that he also told Ms. G he was going to Manila the following August and he could have the matter addressed there.
3.4 The complainant states that Ms. G e-mailed him the following day asking that he obtain, as a matter of urgency, a letter from his GP outlining the problem with his hearing, when it started and the potential impact it had on his ability to do his job. He states that he went to his GP on 21 March, 2009 and got a letter from him which certified that he was "physically and mentally fit to work". In the course of the Hearing the complainant stated that this GP was new to him and he (the GP) was not aware of the complainant's hearing impairment. The complainant adds that a few days later he received an e-mail from Ms. M indicating that he should see his Consultant as soon as possible and obtain the information the respondent had requested about his hearing issues. The complainant states that he had not made an appointment at that time to meet with his Consultant and he set about doing so. He adds that he booked an appointment with an ENT Consultant in the Hermitage Clinic for 15 April, 2009 and e-mailed Ms. G on 1 April, 2009 confirming this. He states that these arrangements changed when he was able to secure an appointment with his own Consultant (Mr. X) for 14 April, 2009 and he took this appointment. The complainant states that he underwent a hearing test on 14 April, 2009 and in light of same his Consultant recommended that he would benefit from the use of a hearing aid which would, inter alia, assist him in the course of his employment.
3.5 The complainant states that about a week later he informed Ms. J of the above and that he would obtain a hearing aid as soon as he had sufficient funds to purchase one. He adds that Ms. J appeared to be happy with this and he believed this was the end of the matter. He further states that although he did not ask her to pass this information on to Ms. M or Ms. G, he assumed she would do so. The complainant states that he continued to work as normal until the alleged incident of harassment on 30 March, 2009 (a matter which is detailed at paragraphs 3.10-3.11 below). He states that he heard nothing more about the matter until he was requested to attend a meeting on 19 May, 2009 with Ms. G, Ms M and Ms. J. The complainant adds that in the course of this meeting Ms. G referred to the fact he had not furnished the letter outlining his hearing issues and how they might impact on his ability to perform his job. He adds Ms. G informed him that he was to furnish this letter by 22 May, 2009 and that if he did not do so the respondent's Disciplinary Policy would be invoked against him. In the course of the Hearing the complainant confirmed that at the time of this meeting he understood the potential seriousness of the matter at hand. He states that he immediately rang his Consultant's Office requesting that the letter required by the respondent issue without delay. He adds that he made a further call to the Consultant's Office but the letter did not issue before the deadline of 22 May, 2009. The complainant states that a number of performance related issues were raised with him at this meeting. In the course of the Hearing the complainant stated that he (i) was unable to recall whether or not he mentioned he required a hearing aid at this meeting and (ii) accepted that the minutes of this meeting furnished by the respondent accurately reflected the issues discussed at the meeting, although he subsequently sought to resile from this.
3.6 The complainant states that he received a letter from the respondent (Ms. G) on 22 May, 2009 advising that as she had not received the letter requested, the respondent had scheduled an investigation meeting under its Disciplinary Policy for 26 May, 2009 and the complainant was requested to attend. He states that he attended this meeting with a colleague and that in the course of the meeting he was accused of dishonesty by Ms. G for failing to disclose his hearing impairment on his pre-employment medical questionnaire. The complainant adds that Ms. G told him his actions amounted to a breach of trust, that the matter was a serious one and could result in his dismissal and that "his neck was on the line". He states that later that same day Ms. G summoned him to her Office where she (i) re-emphasised his actions amounted to a breach of trust and that the matter was a serious one, (ii) stated she could not say how serious the consequences but dismissal was a possibility and (iii) stated he could lose his nursing career because of his bad record with the respondent and that all this unpleasantness would go away if he resigned. The complainant adds that he was very distressed by Ms. G's comments and felt that he had breached the respondent's trust and that the only option available to him was to resign or be blacklisted in other hospitals in Ireland.
3.7 The complainant states the he met with Ms. G and Ms. M on 27 May, 2009 and Ms. M gave him the option to proceed to the next stage of the disciplinary process or resign. He adds that she told him he would be banned in other hospitals if the process proceeded but the matter would be erased if he resigned. She told him that the deadline for receipt of his letter of resignation was the following day. The complainant states that he felt he had broken a rule in the Clinic and was sorry if this upset the respondent's Management. He adds that he felt he was in a "no win" situation, was anxious and scared and he therefore tendered his written resignation to Ms. M on 28 May, 2009. The complainant rejects the respondent's assertion that he stated (at this meeting) that he would prefer to resign as he was thinking of going to Australia. He accepts however, that in the course of these meetings he indicated he was exploring the possibility of moving to work in Australia - he had commenced the registration process approx two months earlier. It is submitted on behalf of the complainant that this amounts to constructive discriminatory dismissal on grounds of disability contrary to the Acts.
3.8 The complainant states that after the meeting on 27 May, 2009 ended he asked Ms G if she would provide him with a reference confirming his proficiency in reading, writing and communicating in English, which he required for his application for registration with the Nursing Board of Victoria, Australia. He adds that Ms. G refused to provide such a reference because of his obvious hearing disability and that she would only provide a basic reference. The complainant confirms that such a reference was issued to him on 28 May, 2009. It is submitted on his behalf that this amounts to less favourable treatment of him contrary to the Acts.
3.9 The complainant further states that at the meeting of 27 May, 2009 it was agreed he would be paid one month's salary in lieu of notice (commencing immediately). He adds that he was rostered until 7 June, 2009 and he agreed to cover the shifts he had been rostered up to that date. The complainant states he was rostered to work a shift on 29 May, 2009 but cancelled it because he was not in a proper state of mind to work and was fearful of his patients' welfare in those circumstances. He adds that he was due to work on 1, 3 and 4 June, 2009 but he received a telephone call from a colleague informing him that his name had been removed from the roster. He states that he received another telephone call from a colleague who told him that he had been removed from the roster at the instruction of Ms. M. It is submitted that this amounts to less favourable treatment of him contrary to the Acts.
3.10 The complainant states that his duties would bring him into daily contact with Ms. M and confirms that his working relationship with her was a professional one. He contends that in the weeks following his meeting with her Ms. J and Ms. G in early March her attitude towards him deteriorated and her tone was harsher and aggressive. He adds that he was on sick leave on 16 March, 2009 and Ms. M e-mailed him on 22 March, 2009 seeking a sick certificate for being absent that day although medical certification was not required for a single day's absence and submits that this is harassment of him contrary to the Acts. The complainant further states that a more serious incident occurred on 30 March, 2009. He adds that it was the practice amongst Staff Nurses on a shift that they would decide who would carry the role of nurse in charge. He states that Nurse A was the nurse in charge on the night shift which finished on the morning of 30 March, 2009. He adds that Nurse A had assigned responsibility for a particular patient to an agency nurse on duty that night - this responsibility was to ensure the patient was ready for theatre at the correct time. He adds that early that morning the Clinical Nurse Manager of the Operating Theatre rang Ms. M complaining that the particular patient was not ready for theatre.
3.11 The complainant states that Ms. M subsequently called him into the Treatment Room on the Ward and subjected him to a verbal attack (in front of colleagues) for the patient not being ready. He states that he was unable to explain that it was not his responsibility or that she should talk with Nurse A, due to the ferocity of her voice. The complainant states that he so afraid of Ms. M that he just accepted the treatment of him. In the course of the Hearing a former colleague of the complainant (Ms. F) stated that on the morning in question she heard Ms. M "having a rant" at the complainant over this matter but did not hear her make reference to his hearing impairment. She further stated she considered the behaviour of Ms. M to be inappropriate at the time and that she had witnessed Ms. M behaving in a similar inappropriate manner on a number of occasions with other staff as this was her management style. The complainant adds that Ms. M spoke with him again on 2 April, 2009 (in the Treatment Room) and told him his actions were unacceptable and amounted to negligence of the patient. He further states that Ms. M informed him his explanation was unacceptable because as a nurse in the Clinic he was responsible for the treatment and care of all patients. The complainant confirms that he was aware of the respondent's Grievance Policy but he did not invoke it against Ms. M because he was afraid of her. It is submitted on behalf of the complainant that this amounts to harassment of him contrary to the Acts as it had the effect of violating his dignity and was only deployed by Ms. M after the complainant had disclosed his hearing impairment.
3.12 It is submitted on behalf of the complainant that Section 16 of the Acts obliges the respondent to provide him with reasonable accommodation. It is submitted that an important aspect of the obligations imposed on employers is to conduct a proper assessment of the employees needs and establish the factual position in relation to the employee's capacity if reasonable accommodation was provided and relies on the Determination of the Labour Court in A Government Department v An Employee (Ms B)1 in this regard. The complainant states that no such assessment was carried out by the respondent. He states that after meeting with his own Consultant (Mr. X) and having been told he would benefit from a hearing aid he informed his Line Manager (Ms. J) of this and that at the meetings that followed with various members of Management the respondent showed no interest in assessing his needs or considering the question of what accommodation it could reasonably make. It is submitted on the complainant's behalf that the respondent has breached its duty to provide reasonable accommodation pursuant to Section 16 of the Employment Equality Acts, 1998-2008.
3.13 Counsel for the complainant submits that the respondent's letter of 22 May, 2009 clearly demonstrates its Disciplinary Policy was engaged against him because of his hearing impairment. She argues that this amounts to less favourable treatment of the complainant on grounds of disability. She further submits that the content of the pre-employment medical questionnaire is too broad and does not enable the assessment the respondent submits it is intended to enable. She asserts that the questions should be more specific in order to elicit the necessary information and submits that the actions of the respondent in relying on the failure of the complainant to mention his hearing impairment on the questionnaire amount to less favourable treatment of him contrary to the Acts. Counsel further argues that the actions of the respondent in bringing pressure on the complainant to resign arose entirely from its putative belief that his disability affected to ability to perform his job. She states that despite comments in its submission that the complainant's hearing impairment directly impacted on his ability to perform his duties in a safe and competent manner, the respondent was unable to furnish details of why it reached this conclusion, stating that there was no evidence to suggest that patient care was compromised as a result of the complainant's hearing condition. She contends that the a prima facie case of discrimination as regards his conditions of employment has been made out as the complainant's disability was a contributing factor to the treatment of him and relies on the Determination of the Labour Court in A Government Department v An Employee (Ms B)2 wherein that Court took account of the Decision of the UK House of Lords in Nagarajan v London Regional Transport3 and found that "the proscribed ground need not be the sole or even the principal reason for the conduct impugned, it is enough that it is a contributing cause in the sense of it being a significant factor". Counsel for the complainant further submits that once the burden of proof shifts to the respondent it must demonstrate that there was no discrimination whatsoever in the manner in which it behaved towards the complainant.
3.14 Finally, Counsel submits that the complainant was subjected to several months of discriminatory treatment as a result of his disability and ultimately had the respondent's disciplinary process applied to him. She adds that the clinical issues raised in March, 2009 were considered not to be well founded and there were no immediate concerns about him performing his duties as he was continuously rostered for shifts. She argues therefore that the only issue which the respondent pursued the disciplinary process for was the pre-employment medical questionnaire and submits that it pursued this matter vigorously. She states that the respondent was aware from March, 2009 that the complainant had a hearing impairment and it is therefore not credible to contend that he lied. She further submits that the respondent did not apply the disciplinary process in accordance with the Staff Handbook and ultimately given the pressure brought to bear on him the complainant was left with no other option but to resign. Counsel further submits that the single most telling feature of the instant case is the respondent's failure to have the complainant assessed by its nominated medical expert. She states that rather than seek to establish whether or not the complainant's disability had any real bearing on his capability to perform his job, it proceeded instead to subject him to its Disciplinary Policy in respect of the non-disclosure of a disability that would only have properly been required to be disclosed in any event if it had a bearing on his fitness to carry out his job and he was specifically asked that question. Counsel seeks to rely on the Decision of this Tribunal in X v An Electronic Component Company4 and the Determination of the Labour Court in A Health and Fitness Club v A Worker5 as authority for the proposition that the failure of the respondent to make adequate enquiries about the complainant's disability results in (a) the application of the respondent's Disciplinary Policy to the complainant amounting to less favourable treatment of him and (b) the termination of the complainant's employment amounting to a discriminatory dismissal pursuant to the Acts. Counsel further argues that in all of the circumstances the complainant has established a prima facie case of constructive discriminatory dismissal.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It adds that the steps it took in dealing with the complainant were ones it was entitled to take as they arose solely out of the complainant's failure to comply with fair and reasonable directions that he provide clarification on an extremely important issue over a protracted period. It adds that an employer is entitled to require its employees to discharge their duty of good faith and candour and that they cooperate reasonably with appropriate requests made of them. It further states that in the instant case it was fully entitled to investigate a serious breach of trust issue it had with the complainant when it had compelling grounds to believe that he had been consistently lacking in candour.
4.2 The respondent states all employees are required to complete a standard pre-employment medical questionnaire. It adds that the function of the questionnaire is to allow the respondent to be aware of and make any necessary accommodation to ensure that an employee is able to work. It further states that potential employees are requested to complete the questionnaires and they are assessed by the respondent's Occupational Health Department. The respondent adds that the complainant failed to disclose his hearing impairment when completing the questionnaire. It accepts that there is no specific reference to hearing on the questionnaire but states that there were three questions on it to which the complainant could and should have disclosed his hearing impairment in response and he did not do so. The respondent adds that by signing the questionnaire the complainant was making a declaration that the information he included on the questionnaire was true and accurate and acknowledging that any failure to disclose relevant information might result in disciplinary action been taken against him.
4.3 The respondent states that the complainant was performing satisfactorily from the beginning of his employment and became an established permanent employee after six months. It further states that in early March, 2009 Ms. J informed Ms. G that the complainant had told her he had hearing difficulties in one ear. The respondent accepts that a meeting took place a number of days later which was attended by the complainant, Ms. J, Ms. M and Ms. G. It states that in the course of this meeting the complainant, in response to a question about his hearing difficulties, advised he had a problem since November/December, 2008 and that it was due to climatic changes. The respondent states that the complainant was requested to obtain a report from his GP outlining his hearing difficulties, how long he had the impairment and whether or not there was any likely impact on his ability to perform his duties. The respondent states that no report was received and the complainant wrote to Ms. G on 17 March, 2009 stating, inter alia, that the partial hearing loss he suffered was due to an infection because of climatic change, that he had attempted to arrange an appointment with his Consultant but it would be at least two months before he could get one and suggested that he might have the matter addressed when he returned to the Philippines the following August. The respondent states that Ms. G responded by e-mail of 18 March, 2009 reiterating the need to get the letter previously requested by the respondent as a matter of urgency. It adds that Ms. G also indicated she would need to look into the impact of the complainant not fully completing the medical questionnaire. The respondent states that the complainant provided a letter from his GP dated 21 March, 2009 stating that the complainant "was physically and mentally fit for work". The respondent states that this letter did not address or provide information on the issues requested.
4.4 The respondent states that the complainant e-mailed Ms. G on 1 April, 2009 advising that he had made an appointment with an ENT Consultant in the Hermitage Clinic for 15 April, 2009 and it therefore awaited receipt of the information sought in due course. It adds that when the information sought did not arrive by 19 May, 2009 the respondent requested the complainant to attend a meeting with Ms. G, Ms. M and Ms. J that day. The respondent states the complainant advised at this meeting that he had not attended the ENT Consultant in the Hermitage Clinic as previously indicated but had instead attended his own Consultant (Mr. X) and had requested that he forward the letter which had been requested to the respondent. The respondent states that it informed the complainant the letter had not been received and it was agreed that he would arrange to furnish same by 22 May, 2009. It adds that at this meeting the complainant confirmed that the problem with his hearing started in November/December, 2008 but made no reference to the fact that Mr. X had suggested he might benefit from a hearing aid. The respondent states that Ms. J recalls a conversation with the complainant on the corridor when he made some reference to possibly needing a hearing aid and she advised him to keep Human Resources informed although she never related this to the respondent at any stage. The respondent states that it considered the matter to be a serious one and Ms. G followed the meeting up with an e-mail to the complainant clarifying what exactly was required of him. The respondent accepts that a number of patient care issues were also discussed at this meeting.
4.5 The respondent states that the complainant did not provide the letter by the deadline of 22 May, 2009 and Ms. G wrote to him on the day requesting his attendance at an investigation meeting on 26 May, 2009 in accordance with its Disciplinary Policy, for failing to disclose medical information that directly impacted on his ability to perform his duties in a safe and competent manner. In the course of the Hearing the respondent was unable to furnish details of why it reached this conclusion, stating that there was no evidence to suggest that patient care was compromised as a result of the complainant's hearing condition. It states that during this meeting (which was attended by Ms. G, Ms. J and a colleague of the complainant as support person) the complainant stated he had the hearing condition since childhood and that this was the first occasion he had advised the respondent of this. The respondent states it was explained to the complainant that he was required to disclose this in the pre-employment questionnaire and that his failure to do so amounted to a breach of contract. The respondent states it was also explained to the complainant that the questionnaire was in place to enable it to assess the extent of any problem identified and thus facilitate it in providing whatever support and accommodation necessary. The respondent states that another employee with a hearing impairment, which was disclosed on the pre-employment questionnaire, was recruited without the need for any accommodation as the use of a hearing aid by the employee addressed the matter.
4.6 The respondent states that the complainant furnished it with an audiology report at this meeting but did not furnish the associated report from his Consultant to explain the data as to the nature and impact of his hearing condition on his ability to perform his job. It states that although he was asked if there was anything he would like to add at the end of this meeting he did not mention that he would benefit from a hearing aid. The respondent rejects the assertion that Ms. G informed the complainant that "his neck was on the line" in the course of this meeting. It further states that given the inconsistency between the complainant's initial statement that his hearing condition had only commenced the previous November/December and his current comment that it dated back to childhood the complainant was advised by Ms. G that the matter would proceed to a disciplinary hearing.
4.7 The respondent states that after this meeting Ms. J was concerned that the complainant did not appear to understand the seriousness of the situation and she suggested to Ms. G that she (Ms. G) should meet with the complainant again to ensure that he understood the process, the reasons for it and the potential outcomes of a disciplinary hearing. The respondent adds that Ms. G met with him that afternoon to address these concerns. The respondent states that in the course of this meeting the complainant advised Ms. G that he was thinking of going to Australia and it was in those circumstances that Ms. G told him that it was open to him to resign. The respondent rejects the complainant's assertion that Ms. G brought any pressure to bear on the complainant to resign. It states that Ms. G had ten years' experience in HR at that time and would never pre-empt the outcome of a disciplinary process.
4.8 The respondent states that the complainant met with Ms. G and Ms. M on 27 May, 2009. It adds that the complainant informed them at the outset that he preferred to resign as he was applying to go to Australia and it was agreed that he would furnish a letter confirming his resignation the following day. The respondent further states that it was agreed that the complainant would be paid a months' pay in lieu of notice and he stated that as he was rostered until 7 June, 2009 he would fulfil those duties. The respondent states that the respondent received his letter of resignation the next day. It notes that the complainant states "I would like to take this opportunity to thanks the organisation for the wonderful experience I have during my year of service". It submits that this comment is entirely inconsistent with his allegations of harassment and discrimination. The respondent further submits that the complainant's agreement to work until the end of the period he was rostered for is inconsistent with the alleged acrimonious termination of the complainant's employment.
4.9 The respondent states that the complainant's failed to attend for the rostered duty on 30 May, 2009 as previously agreed. It adds that the complainant gave the respondent very short notice of his unavailability for the shift and alternative cover had to be organised. It states that on becoming aware the complainant had failed to report Ms. M instructed that he be removed from the roster in respect of the remaining days he was rostered for duty between then and 7 June, 2009. The respondent states that the complainant was not at any financial loss for this as he was paid in lieu of notice until 28 June, 2009. It adds that whilst the complainant may have been aggrieved at this action it rejects his contention that it amounts to less favourable treatment of him contrary to the Acts.
4.10 The respondent states that the complainant asked requested a detailed reference for the Nurses Board of Victoria, including a statement that he had worked through English. The respondent adds he was informed that it was the company policy to provide factual statements of employment detailing the dates of employment and capacity in which the employee worked, but that in his case it would also confirm that he had carried out his work through English. It states that a reference along these lines was provided to the complainant on 28 May, 2009. The respondent rejects the assertion that it treated the complainant less favourably than other employees in similar circumstances and furnished the Tribunal with copies of references for other employees who ceased employment with it before and after the complainant.
4.11 The respondent rejects the complainant's assertion that he was harassed by Ms. M at any stage during his employment. The respondent (Ms. M) states that she cannot recall the incident about the medical certificate in mid-March, 2009, but accepted that she had requested one when presented with a copy of her e-mail to him. She adds that she could not recall why she would behave in such a manner but opined that it may have been because his salary may have been deducted if the absence was not covered. The respondent furnished copies of medical certificates in respect of other employees where they were absent for a single day.
4.12 The respondent (Ms. M) states that she has been in the nursing profession for thirty-five years, the last fourteen of which have been in middle and senior management positions. She adds that it is her daily routine to walk through the wards in the respondent Clinic on arrival each morning. She states that on the morning in question she was told by the Clinical Nurse Manager attached to the Operating Theatre that a patient was late for theatre, that he had spoken to staff on the ward and the matter had not been addressed and asked her to deal with the issue. Ms. M states that she went immediately to the ward and asked Ms. J, who was the Clinical Nurse Manager on duty, to gather the staff involved. She adds that she viewed the matter as a serious and legitimate issue which required immediate action. Ms. M states that she was aware the complainant had taken the telephone call from theatre and she therefore questioned what action he had taken. She adds that the complainant told her that an agency nurse had been looking after the patient in question and that he was not responsible for the patient. Ms. M states that she was disappointed with his response and informed him that she viewed his behaviour as tantamount to clinical negligence and that this could not be tolerated. She adds that whilst nurses might informally assign responsibility for particular patients to individual nurses during a shift she did not accept that practice and was of the view that all nurses were responsible for the care of all patients. Ms. M states that she advised the complainant and the others present of her position on this matter but rejects the assertion that she shouted at him. She accepts she spoke to the complainant a couple of days later and states that this was to ensure he understood her position on a matter of serious concern to her. She concluded by saying that she had a good working relationship with the complainant and emphatically rejected the suggestion that the events in question were connected with his hearing impairment.
4.13 The respondent rejects the complainant's assertion that it failed to provide him with reasonable accommodation pursuant to section 16 of the Employment Equality Acts, 1998-2008. It states that it attempted to fulfil its statutory obligations in this regard and was thwarted by the complainant in doing so. It submits that the pre-employment questionnaire is designed to elicit details of any conditions or illnesses an employee has which might impact on that employee's ability to perform the tasks associated with a particular post, so that the respondent is in full possession of all relevant information in terms of assessing what types of accommodations may be required to enable the employee perform his/her duties. The respondent states that the complainant initially lied about his hearing impairment on this questionnaire and thereafter misled and generally hindered it in its attempts to acquire details of his condition. Counsel for the respondent argues that in the circumstances it made every reasonable effort to "make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity ....and be in full possession of all material facts concerning the employee's condition"6 but it was prevented from doing so by the continuous failure of the complainant to engage with it. Counsel submits that the respondent could not be considered to have failed to provide reasonable accommodation to the complainant in those circumstances. Finally on this point, Counsel submits, without prejudice to the foregoing arguments, that the nature of the accommodation which the complainant eventually indicated was required i.e. a hearing aid, is an item that falls within the definition "appropriate measures" in terms of section 16(4)(c) of the Acts and is therefore an item which the complainant might ordinarily or reasonably provide himself.
4.14 Counsel for the respondent rejects the assertion that the complainant was treated less favourably on grounds of disability in terms of his conditions of employment. He states that the complainant initially lied about his hearing impairment on the respondent's pre-employment questionnaire in circumstances where the questionnaire expressly stated that the provision of false or misleading information on the document could give rise to disciplinary proceedings against him, up to and including dismissal. Counsel for the respondent accepts that there are no specific questions about a prospective employee's hearing on the questionnaire. However, he argues that the questions contained in it are not exhaustive and that moreover there are a number of questions where the complainant, particularly where he is a qualified nurse, ought to have disclosed the information that he underwent surgery as a child for his hearing impairment. Counsel adds that the respondent became aware the complainant had a hearing difficulty in early March, 2009, when the complainant advised he was suffering from an infection arising from climatic changes. It states that it immediately sought to have the complainant clarify the nature and extent of his impairment. Counsel states that thereafter the complainant persistently failed to co-operate with the respondent's numerous attempts to acquire this information and ultimately the respondent invoked its Disciplinary Policy against him. Counsel further submits that the respondent's actions in this regard were not connected with the complainant's disability rather they were an example of its right to manage a breach of trust. Counsel submits that authorities cited by the complainant A Government Department v An Employee (Ms B)7 and Nagarajan v London Regional Transport8 are not relevant to the instant case.
4.15 Counsel for the respondent also rejects the complainant's assertion that he was harassed on grounds of disability contrary to the Acts. Counsel states that the actions of Ms. M that morning were motivated by her concern for patient care and the fact that the complainant, as an experienced nurse, had sought to abdicate responsibility for a patient not being ready for theatre, in circumstances where Ms. M was of the view that patient care is the collective responsibility of all nurses on duty. Counsel submits that the complainant's oral evidence and his submission, along with the oral and written statement of Ms. F support this proposition. Counsel adds that the complainant's submission makes no reference to his hearing impairment being mentioned by Ms. M on the day and notes his oral confirmation of this at the Hearing, a position corroborated by Ms. F. Counsel for the respondent also states that the discussion between the complainant and Ms. M the next time he was in work again focuses on patient care and professional negligence. Counsel submits that the complainant's contemporaneous detailed diary notes of both of these discussions make no reference to his disability being a factor for the alleged treatment of him. He notes that the complainant's diary extracts expressly identify his race as being the cause of Ms. M's treatment of him and submits that this was the complainant's impression at the time and is therefore fatal to his complaint. Moreover, Counsel notes the evidence of Ms. F that she had observed Ms. M on a number of occasions "having a rant" at other employees and that this was her management style. Finally, Counsel states that the complainant never invoked the Grievance Procedure against Ms. M and was entitled to do so at all times. It was therefore submitted on behalf of the respondent that the interaction between the complainant and Ms. M does not amount to harassment of him on grounds of disability contrary to the Acts.
4.16 Counsel for the respondent rejects the complainant's assertion that he was dismissed and states that he resigned unilaterally and of his own volition. He adds that the complainant decided to resign during an investigation under the respondent's disciplinary process in circumstances where he had indicated to Ms. G that he intended to pursue a career in Australia. Counsel further states that when Ms. G became aware of this she informed him that if this was the case, he always had the option to resign and gave him time to consider the options available to him. Counsel notes the complainant's comments in his submission to the Tribunal that he "understood the offer to resign was an act of kindness" as "he had broken some rule" and he chose to avail of that option. Counsel also notes the tone and content of the complainant's letter of resignation and submits they highlight that his departure from the respondent was an amicable one, adding that the complainant agreed to fulfil the shifts he had been rostered on for the following week. Counsel submits that the X v An Electronic Component Company9 and the Determination of the Labour Court in A Health and Fitness Club v A Worker10 are not relevant to the instant case as the respondent did not dismiss the complainant on grounds connected with his disability or at all.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts, (ii) harassed the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 14A of those Acts, (iii) dismissed the complainant in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts and (iv) failed to provide the complainant with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998- 2008 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination in respect of the alleged unlawful treatment of him. It is only if this initial burden is discharged and I am satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required, his case cannot succeed.
5.3 I propose to look at the complainant's allegation of harassment first. Section 14A of the Employment Equality Acts, 1998-2008 defines harassment as follows:
"any kind of unwanted conducted related to any of the discriminatory grounds..... being conduct which .. has the purpose of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person."
The complainant states that after he disclosed his hearing impairment to his Line Manager (Ms. J) the attitude of Ms. M, with whom he had previously had a good and professional working relationship, changed toward him. He states that the first alleged incident of harassment occurred within a few weeks of his disclosure of his hearing impairment in March, 2009 when Ms. M requested that he furnish a sick certificate covering a single day absence on sick leave. Ms. M accepts that she requested this sick certificate but was unable to clarify why she did so, stating that it was most likely to ensure his salary was not reduced. The respondent was unable to furnish me with a copy of the Sick Leave Policy which operated at that time but accepted that a single day absence would not generally require formal medical certification. However, it submitted documentation which shows that medical certificates were sometimes furnished by employees for such absences. Ms. M requested the complainant to furnish a sick certificate covering a single day absence by e-mail dated 22 March, 2009. The e-mail also requests that the complainant furnish the respondent's HR Department with other unrelated documentation. The tone of the e-mail is pleasant and cordial. It requests the complainant to furnish a sick certificate covering his absence from duty but does not state that this must be from the complainant's GP. I am satisfied, on balance, that the complainant erroneously placed this interpretation on the request and obtained a formal medical certificate from his GP. Having evaluated all the evidence adduced by the parties on this matter I am not satisfied that the complainant has established a prima facie case of harassment in respect of this aspect of his complaint.
5.4 The next alleged incident of harassment concerns the interaction between the complainant and Ms. M on 30 March, 2009 and 2 April, 2009. It is common case that Ms. M reprimanded the complainant in front of others in the Treatment Room on the morning of 30 March, 2009. It is also common case that this incident arose on foot of Ms. M receiving a complaint from the Clinical Nurse Manager in the respondent's Operating Theatre because a patient was not ready for theatre at the appropriate time. Ms. M states that she addressed her irritation at the complainant because she was satisfied that he was the one who had taken a phone call from the Clinical Nurse Manager earlier that morning, a point the complainant accepted, and in her view he had not handled the matter in a manner expected of a nurse of his grade and experience. She adds that she was disappointed with his response that the patient in question was not his responsibility and that an agency nurse had been assigned that responsibility. The complainant states that that nurses on duty split responsibility for particular patients between themselves during a shift and agree that a senior, suitably experienced nurse is nominated as nurse-in-charge on the shift. Ms. M, whilst accepting that such a practice occurs, states her position is that all nurses are responsible for the care of all patients. It is clear that this philosophy underpinned her altercation with the complainant on the morning in question as she referred to this on the day and also when she spoke again with the complainant a couple of days later. The issue to be addressed in this investigation is whether or not her behaviour and treatment of the complainant amount to harassment of him on grounds of disability contrary to the Acts.
5.5 There is dispute between the complainant and Ms. M as regards her tone and demeanour towards him on 30 March, 2009. The complainant states that she shouted at him to such an extent that he was unable to "get a word in". Ms. F states that she overheard Ms. M "having a rant" at the complainant on the morning in question. Ms. M essentially rejects the complainant's version of events. I note Ms. F's evidence that she considered Ms. M's behaviour that morning to be inappropriate for a Senior Manager and further that she (Ms. F) had observed her behaving in similar fashion on a number of occasions previously. It is clear to me that Ms. M was extremely irritated at being approached by the Theatre Clinical Nurse Manager on the morning in question with a complaint. In the course of the Hearing she stated that she had to address similar problems throughout the Clinic on a number of previous occasions and I am satisfied that this was a factor which contributed to her reaction on the day. Her irritation was exacerbated by the complainant's attempts to abdicate responsibility for the issue to an agency nurse in circumstances where he had taken the original phone call from theatre and in the eyes of Ms. M had, in effect, done nothing about it. In all of the circumstances I am satisfied, on balance, that the Ms. M berated the complainant on the morning in question (in front of colleagues) and in doing so raised her voice considerably. However, I note both the complainant and Ms. F confirmed at the Hearing that the complainant's hearing impairment was not mentioned during the altercation. Moreover, extracts from the complainant's diary at the time (which were produced in evidence to the Tribunal and which the complainant stated were his contemporaneous record of the events) clearly indicate that he considered his race to be a factor in her treatment of him and no reference to his disability is included in those extracts. I further note the agreement between the parties as to the content of the discussion that took place a couple of days later where patient care, collective responsibility and potential negligence were mentioned. Again the complainant's diary notes make no reference to his hearing impairment. I am satisfied that by 30 March, 2009 Ms. M was aware of the complainant's hearing impairment and of the nature of the on-going interaction between him and the respondent's HR Department. However, having given careful consideration to the totality of the evidence adduced by the parties I am satisfied that whilst the behaviour of Ms. M is inappropriate and unbecoming a Senior Manager in the respondent Clinic, it does not amount to harassment of the complainant on grounds of disability contrary to the Acts and consequently the complainant has failed to establish a prima facie case of harassment on grounds of disability contrary to the Acts.
5.6 I shall now look at the complainant's allegation of less favourable treatment of him on grounds of disability contrary to the Acts. This element of his complaint comprises three components - the application of the respondent's disciplinary process against him, the manner in which it treated him in respect of providing him with a reference and the removal of him from the roster in late May, 2009. Section 6 of the Acts provides that discrimination shall be taken to have occurred where "a person is treated less favourable than another person is, has or would be treated in a comparable situation on any of the....discriminatory grounds.".
5.7 I propose to address the issue of the complainant's reference first. He states that at the end of the meeting with Ms. G on 27 May, 2009 he asked her if she would provide him with a reference confirming his proficiency in reading, writing and communicating in English which he required for his application for registration with the Nursing Board of Victoria, Australia. He states that Ms. G refused to provide such a reference because of his obvious hearing disability and that she would only provide a basic reference. The respondent denies that Ms. G made the comments attributed to her and states that the complainant was informed it was the company policy to provide factual statements of employment detailing the dates of employment and capacity in which the employee worked, but that in his case it would also confirm that he had carried out his work through English. This is exactly what happened the following day when the complainant was furnished with a reference in those terms. The respondent furnished the Tribunal with copies of references for other employees (who did not have a disability) over an extended period of time (both before and after May, 2009) and all are similar in fashion. Consequently, I find that the complainant has failed to show that he was treated differently to other employees who received a reference, let alone that it amounted to less favourable treatment and accordingly, this element of his complainant cannot succeed.
5.8 I shall now examine the circumstances surrounding the removal of the complainant from the respondent's scheduled roster during the notice period at the end of his employment. It is common case that at the meeting between the complainant and the respondent on 27 May, 2009 it was agreed that the complainant would be paid a month's salary in lieu of notice and that he would fulfil the shifts he had been rostered for up to 7 June, 2009. It is also common case that the complainant failed to turn up for a shift on 29 May, 2009 and that the respondent subsequently removed him from the roster. The complainant submits that this amounts to less favourable treatment of him contrary to the Acts. Section 6 of the Acts provides that discrimination can arise where a person is treated less favourably than another person (a comparator) on one of the proscribed grounds. The section also provides that the consideration of the treatment complained of can be against an actual or a hypothetical comparator. The complainant was unable to identify an actual comparator for the purposes of this element of his complaint and the issue therefore falls to be considered in terms of a hypothetical comparator. In Europa Plus Ltd v Nijole Kvostiene11 the Labour Court, in adopting the observations of Lord Nicholls in Shamoon v Chief Constable of the RUC12 and those of Underhill P in Cordell v Foreign and Commonwealth Office13, stated that "in seeking to construct a hypothetical comparator in the instant case the Court must first consider the reason why the complainant was subjected to the treatment of which she complains". The Court went on to say, in terms of the probative burden (in terms of section 85A of the Acts) required of the complainant was that, "the irreducible minimum requirement of this section.... is that the complainant must adduce some credible evidence form which it can be inferred that she was afforded the treatment complained of because she is a Lithuanian." . Applying the Court's rationale to the instant case it is clear that the complainant must, in the first instance, adduce credible evidence that his hearing impairment was a factor which influenced the respondent in its decision to remove him from the roster. I am not satisfied that the complainant has discharged that probative burden. In addition, I note that the complainant was not at any financial loss as a result of the respondent's actions. In light of the forgoing I find that the complainant has failed to establish a prima facie case of discrimination on grounds of disability in respect of this element of his complaint.
5.9 The final element of this part of the complainant's claim is that the application of the respondent's disciplinary process against him constitutes discrimination of him on grounds of disability as the actions of the respondent were inextricably linked to his hearing impairment and relies on the Determination of the Labour Court in A Government Department v An Employee (Ms B)14 wherein that Court took account of the Decision of the UK House of Lords in Nagarajan v London Regional Transport15. Moreover, it is the complainant's position that the format of the pre-employment questionnaire was too broad and that he completed the document fully and did not mislead the respondent in any way. The respondent states that the steps it took in dealing with the complainant were ones it was entitled to take as they arose solely out of the complainant's failure to disclose his hearing impairment in the first instance and thereafter to comply with fair and reasonable directions that he provide clarification on an extremely important issue over a protracted period.
5.10 The first issue to be examined as regards this element of the complainant's claim is the circumstances surrounding the respondent's pre-employment questionnaire. The complainant states that had there been a question on this specifically about his hearing he would have answered it. It is the respondent's position, whilst accepting that there is no specific question on hearing contained on the questionnaire, that there were three questions on it to which the complainant could and should have disclosed his hearing impairment in response and he did not do so. The respondent adds that by signing the questionnaire the complainant was making a declaration that the information he included on the questionnaire was true and accurate and that any failure to disclose relevant information might result in disciplinary action been taken against him.
5.11 I have examined the questionnaire at issue and it clearly states that a failure to disclose medical information or to give false or misleading information can give rise to the application of the respondent's Disciplinary Policy in the future and that sanctions up to and including dismissal are possible. I concur with the respondent's position that there were three questions on the questionnaire where the complainant could have disclosed his hearing impairment. The most telling of which is "Have you ever had an operation" to which the complainant answered "No". During the course of the Hearing the complainant gave direct evidence that he had his hearing impairment since childhood and had undergone surgery to address the condition. He added that he had forgotten about this operation when completing his questionnaire. At the outset I must say that I find this comment, particularly from a medical professional, to be quite extraordinary and stretches credibility to the extreme. In the course of my investigation the complainant has offered, at different times, in addition to the both the foregoing reasons, the following explanations for his failure to disclose his hearing impairment on the questionnaire - (i) he did not consider it an illness and (ii) he had worked for several years as a nurse and his hearing did not present a problem, (iii) he was "not happy to do so" and (iv) he was afraid he would not obtain employment". Consequently, I find the complainant to be wholly unreliable and inconsistent in his evidence, a matter to which I shall return later. I am entirely satisfied that he made a conscious decision to withhold the existence of his hearing impairment at the outset for fear that he would not obtain employment. He did so in the full knowledge that by signing the pre-employment medical questionnaire he was making a formal declaration as to the accuracy of the information contained therein and that in the event that he failed (a) to disclose medical information or (b) gave false or misleading information he was liable to disciplinary proceedings up to an including dismissal.
5.12 Counsel for the complainant submits that the questionnaire was too broad and as a consequence the respondent's reliance on the complainant's responses to same amount to discrimination of him. I cannot accept that argument. Firstly, pre-employment questionnaires have a role to play in the recruitment process as they allow an employer to establish whether or not a prospective employee can perform the duties associated with a particular post and to examine and determine what, if any "appropriate measures" need to be provided to enable a prospective employee with a disability perform those duties. As I stated in the preceding paragraph the complainant knowingly withheld pertinent information from the questionnaire. The respondent accepted his responses on the questionnaire in good faith and employed him. In the circumstances I cannot see how the complainant suffered any less favourable treatment as regards this aspect of his complaint.
5.13 It is common case that the first occasion the respondent became aware the complainant had any hearing impairment was in early March, 2009 when the complainant spoke with Ms. J after an incident on the ward. It is also common case that within a few days of this the complainant attended a meeting with Ms. J, Ms. G and Ms. M during which his hearing impairment was discussed and he was requested to obtain a letter from his GP outlining his condition, how long he had it and whether or not it posed any likely impact on his ability to perform his duties. The complainant's response to this request was his letter of 17 March, 2009 to Ms. G wherein he re-iterates his hearing problem is due to infection caused by climatic change and advises that he has attempted to secure a hearing test with his Consultant (Mr. X) but the earliest he can do so is two months later and suggests that the matter might be addressed the following August when he returns to Manila. The respondent (Ms. G) replied the following day stating that it was not possible to wait until August and repeated the request for a letter from his GP addressing the matters mentioned above. I am satisfied that if there had been any doubt after the meeting as to what information the respondent required from his GP, Ms. G's e-mail of 18 March, 2009 clearly spelt out these requirements. Instead the complainant obtained a letter from his GP stating that he was "physically and mentally fit to work". Clearly, this does not address the specific issues raised by the respondent. In the course of the Hearing the complainant stated that his GP was a new one and knew nothing of his hearing impairment yet the complainant never, at any stage informed the respondent of this. The complainant also stated that he had not informed the respondent he had the hearing impairment since childhood because "he was not happy to do so". I have given this matter careful consideration and I am satisfied that at the time the complainant deliberately withheld and thereafter avoided obtaining from his GP, the information which the respondent sought.
5.14 It is common case that the complainant informed Ms. G on 1 April, 2009 that he had arranged an appointment with an ENT Consultant in the Hermitage Clinic for 15 April, 2009. It transpired that this appointment did not take place and instead the complainant met with his own Consultant on 14 April, 2009 and underwent a hearing test. He was advised by Mr. X that he would benefit from a hearing aid. The complainant states that he subsequently informed Ms. J of this and that he would purchase a hearing aid when he had the money to do so. He also states that he presumed this was the end of the matter. I find the complainant's behaviour in this regard quite extraordinary. I am satisfied, on balance, that the complainant was fully aware he had not addressed the queries which had been raised by the respondent in mid-March, 2009, otherwise why would he e-mail Ms. G on 1 April. Moreover, his presumption that the matter was concluded as a result of mentioning the use of a hearing aid to Ms. J on the corridor is in stark contrast to the previous occasions when he felt it necessary to formally communicate with the respondent on the matter - his letter of 17 March, 2009 and his e-mail of 1 April, 2009 - both to Ms. G and it was open to him to relate this information direct to Ms. G - and he did not do so. In addition, given the seriousness of the situation he did not request Ms. J to pass the information on to Ms. G and instead expected that she would do so as a matter of course.
5.15 It is common case that there was no further communication between the parties on the matter until 19 May, 2009 when the complainant was requested to attend a meeting with Ms. G, Ms M and Ms. J. In the course of the Hearing on this claim the complainant stated that at this meeting (i) he was informed the respondent was still awaiting a written response to the queries it had raised with him in mid-March, 2009, (ii) that he had until 22 May, 2009 to produce this letter and (iii) that if he failed to do so the respondent would apply the Disciplinary Policy to him. Given the potential seriousness of the situation for him I find it quite extraordinary that the complainant states he made just two telephone calls to Mr. X requesting he furnish the letter requested as soon as possible. It is equally extraordinary that in the course of the meeting the complainant made no reference to Mr. X's recommendation about the use of a hearing aid and its potential to overcome the difficulties he was experiencing, particularly as Ms. J was present at the meeting. Such a comment might well have appeased the respondent and allowed it explore the matter. The complainant's response at the Hearing as to why he did not mention the hearing aid was that the respondent did not specifically raise the issue of his appointment with Mr. X. It appears that the complainant's position at the time, as it was with the pre-employment questionnaire, is that unless a specific question is asked he will not offer potentially relevant information to the issue, even when he faces the prospect of losing his job.
5.16 It is common case that the complainant failed to furnish the necessary letter by 22 May, 2009 and made no contact with the respondent to offer any explanation for that failure. In the circumstances the respondent requested that he attend a meeting on 26 May, 2006 pursuant to the respondent's Disciplinary Policy. In the course of the first day of Hearing the complainant stated that the minutes of this meeting, which he had signed at the time and were opened to the Equality Officer, accurately reflected what happened at this meeting. At a subsequent day of Hearing the complainant sought to resile from that evidence stating that he did not understand the question which had been put to him by the Equality Officer and said that he when he had signed the minutes he was stressed. I cannot accept the complainant's argument. He was represented by both a solicitor and Counsel at the Hearing and did not indicate to me or his legal team at the time that he did not understand the question put to him. Consequently, I am of the view that the complainant's behaviour goes to the level of credibility which one can attach to his evidence. I therefore find that the minutes of the meeting of 26 May, 2009 represent an accurate record of what occurred during it. The minutes record the complainant stated (for the first time) that he had a hearing impairment since childhood and that he had had not disclosed it on the pre-employment questionnaire because in his opinion he could communicate effectively and it had not previously interfered with his ability to perform his job. Whilst the complainant may be entitled to hold such an opinion it is medical certification of this exact issue that the respondent had been seeking to get from him for the previous three months. I am satisfied that on every occasion it attempted to elicit this information it was thwarted by the complainant who was selective in what response he decided to provide depending on the circumstances. At this juncture (meeting of 26 May, 2009) he was faced with the prospect of losing his job - he confirmed at the Hearing that he understood this was a possible outcome - and he disclosed the full extent of his condition. It is noteworthy that contrary to the complainant's opinion on the extent of his hearing impairment, the information recorded by Mr. X in a letter subsequently furnished to the respondent, states that the complainant informed him that his "hearing on the right side was quite poor before surgery and since the surgery has gradually deteriorated.". The complainant has failed to adduce any evidence to support his assertion that the respondent departed from its Disciplinary Policy, indeed the opposite is the case and I note in particular that the minutes of the meeting of 26 May, 2009 indicate the complainant stated he had nothing to add when given that option at the close of the meeting.
5.17 It is common case that Ms. G spoke with the complainant later that day on a one-to-one basis. The complainant states that during this meeting he was told that there would be serious consequences for him unless he resigned. The respondent states that in the course of this meeting the complainant advised Ms. G he was thinking of going to Australia and it was in those circumstances that Ms. G told him that it was open to him to resign. Ms G did not attend the Hearing but the respondent furnished what it stated were her contemporaneous notes of their discussion. In normal course it would be appropriate for me to attach significant weight to the complainant's evidence on this issue. However, as stated above I found him to be a wholly unreliable witness. In the course of the Hearing the complainant accepted that during this meeting he mentioned that he was thinking of moving to Australia. This is entirely consistent with Ms. G's record of the meeting. I am therefore satisfied, on balance, it was in this context that Ms. G made the comment the complainant always had the option of resigning, particularly given the respondent's view that his behaviour amounted to a breach of trust. Moreover, it is noteworthy that at the time the complainant viewed the option of resigning as "an act of kindness" on the respondent's part as it would enable him have an unblemished record in terms of future employment. In light of the foregoing I am satisfied that Ms. G's comments did not amount to pressure on the complainant to resign, a point which I shall return to later.
5.18 It is the complainant's contention that the respondent applied its Disciplinary Policy to him because he failed to disclose a disability and that this amounts to less favourable treatment of him contrary to the Acts. Counsel for the complainant argued that the respondent made no meaningful efforts to determine whether or not the complainant's disability had any real bearing on his ability to perform his job before applying the Disciplinary Policy and seeks to rely on the Decision of this Tribunal in X v An Electronic Component Company16 and the Determination of the Labour Court in A Health and Fitness Club v A Worker17 in this regard. The first authority can be distinguished from the facts of the instant case. In that case the complainant fully disclosed her medical history in a pre-employment questionnaire and the respondent sought to impute a particular disability to her. That imputed disability was a factor in the respondent's decision to terminate the complainant's employment. In the instant case the complainant deliberately failed to disclose medical information on the pre-employment questionnaire. The second authority, which was subsequently approved by the Circuit Court18, sets out, inter alia, the nature and extent of the enquiries an employer should make when examining the capabilities of an employee with a disability to perform the functions attached to a particular post and what, if any, reasonable accommodation is necessary in those circumstances. In that case the Labour Court stated that an employer should "ensure that he or she is in full possession of all the material facts concerning the employee's condition" and that "the employee must also be allowed an opportunity to influence the employer's decision.". Consequently, compliance with the Court's determination necessarily involves the employer discussing the matter with the employee in question or his/her medical advisors. That is what the respondent in the instant case sought to do once it became aware that the complainant had possible hearing difficulties in March, 2009. As I stated above I am satisfied that the complainant's response to the respondent's enquiries was initially to mislead it by consciously omitting relevant information about his condition because the questionnaire did not ask a specific question about hearing and thereafter to deliberately evade providing the relevant information and thus frustrate the respondent's enquiries. Consequently, the Labour Court's Determination in A Health and Fitness Club v A Worker19 cannot assist the complainant.
5.19 In light of my comments in the preceding paragraphs I am satisfied that respondent invoked its Disciplinary Policy against the complainant because of his continued failure to engage with it in its efforts to assess whether or not he had a disability and if so what, if any, impact it had on his ability to perform the tasks associated with his post. The complainant has failed to adduce any evidence which could lead me to the conclusion that the respondent would have treated any other employee who had no disability, or had a different disability to the complainant, different in similar circumstances i.e. where the employee failed to respond to a reasonable request from the employer. In light of this and my comments in the preceding paragraphs I find that the complainant has failed to establish a prima facie case of discrimination in respect of this element of his complaint and it therefore fails.
5.20 I shall now examine the complainant's claim that he was dismissed in circumstances amounting to discrimination on grounds of disability contrary to the Acts. The general thrust of his claim on this issue is that having been subjected to several months of harassment and discrimination, culminating in the respondent's Disciplinary Policy being applied to him and during which pressure was brought to bear on him to resign or face serious consequences for his future employment, the complainant resigned. Counsel submits that this amounts to constructive discriminatory dismissal pursuant to the Acts. The respondent rejects this assertion and states that the complainant resigned of his own volition. Several aspects of the alleged treatment of the complainant which he seeks to rely on in respect of this element of his complaint are recounted above and I do not propose to deal with them further. However, the interaction between the complainant and the respondent (Ms. G and Ms. M) on 27 May, 2009 requires scrutiny. It is common case that the complainant met with Ms. G and Ms. M on 27 May, 2009 as part of the Disciplinary Process. The complainant states that at this meeting he was given the option of resigning or facing serious consequences of not being able to secure future employment in Ireland because of his record. The respondent furnished minutes of this meeting and I am satisfied, on balance, that they reflect an accurate record of what occurred. These minutes indicate that Ms. G asked the complainant at the outset if the matter was proceeding to the next stage of the disciplinary process or if he had given any further thought to what had been discussed between them the previous day (see paragraph 5.17 above) and I am satisfied it was in this context that the issue of resignation was raised. Whilst not recorded I am equally satisfied that it would be a natural consequence of the issue under consideration that some reference to the alternative to resignation took place during this meeting, although given to my previous conclusions as to the credibility of the complainant as a witness I do not accept the complainant's assertion that it was couched in the terms contended by him and as previously stated I am satisfied that any comments made by Ms. G at that time did not amount to pressure on the complainant to resign. I am therefore further satisfied, on balance, that the complainant resigned from his employment of his own volition. In reaching this conclusion, in addition to the comments in the preceding paragraphs, I have had regard to the tone and language of the complainant's letter of resignation, which is amicable and thanks the respondent for "the wonderful experience" he had during his time there - language which is inconsistent with the torrid time he alleges he experienced at the hands of the respondent. I have also taken account of the fact that the complainant had commenced the process to seek employment in Australia at the time. Finally I find it extraordinary that he would volunteer to continue working in such a dreadful environment for a moment longer (he offered to fulfil the remainder of his scheduled shifts until 7 June, 2009) when he could leave immediately without financial loss.
5.21 However, this is not the end of the matter. The complainant submits that he had no option but to resign given the intolerable treatment of him and that this amounts to constructive discriminatory dismissal contrary to the Acts. Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so ...."
In An Employer v A Worker (Mr. O No.2)20 the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts. In addition, the Court held "that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case".
5.22 In the instant case I am satisfied that the "reasonableness" test is the more appropriate. It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that he could not fairly be expected to put up with it any longer and he was therefore entitled to resign from its employment. The corpus of caselaw developed on this point requires the complainant, before taking the unilateral step of terminating his employment, to give the respondent the opportunity to address her grievance or complaint. The complainant did not do so in this instance and this omission of itself might be fatal to his complaint. However, I have found that his allegations of harassment and discrimination, the very treatment he seeks to ground his claim of constructive dismissal upon, are not well founded. Consequently, the behaviour of the respondent could not be considered to be unreasonable in terms of grounding a complaint of constructive discriminatory dismissal. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discriminatory dismissal in terms of the Employment Equality Acts, 1998 -2008 and this element of his complaint cannot succeed.
5.23. The final element of the complainant's case is that the respondent failed to provide him with reasonable accommodation in accordance with section 16 of the Acts. Prior to the coming into force of the Equality Act, 2004 on 18 July, 2004 there was no free standing cause of action available to a complainant in relation to an employer's failure to provide reasonable accommodation to an employee with a disability21 under employment equality legislation. In Ms. Z v A Chain Store22 the Equality Officer found that Article 5 of the Framework Directive23 created an independent requirement on an employer to provide reasonable accommodation in a particular case and went on to apply subsection 16(3)(b) of the Acts accordingly. This approach was endorsed subsequently by the Labour Court in A Company v A Worker24. There is a significant corpus of caselaw from both this Tribunal and the Labour Court and I have set out the rationale of that Court on the issue at paragraph 5.18 above. As I stated I am satisfied that the complainant's persistently thwarted the respondent's efforts to clarify the exact nature of his disability from March, 2009 onwards - when it became aware he may have hearing difficulties. It follows therefore that he cannot maintain a claim against the respondent that it failed to provide him with reasonable accommodation and accordingly this aspect of his complaint fails. In the interest of completeness I shall address the argument advanced by the respondent in terms of section 16(4) of the Acts. This provision defines "appropriate measures" in terms of reasonable accommodation but expressly excludes at paragraph (c) "any treatment, facility or thing that the person might ordinarily or reasonable provide for himself or herself.". I am satisfied that a hearing aid, the benefit of which generally extends beyond the working environment, falls within this exclusion.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find that -
(a) the complainant has failed to establish a prima facie case of discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts,
(b) the complainant has failed to establish a prima facie case of harassment on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts,
(c) the complainant has failed to establish a prima facie case of dismissal amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts,
(d) the complainant has failed to establish a prima facie case that the respondent failed to afford him reasonable accommodation in terms of section 19 of the Employment Equality Acts, 1998-2008 and his complaint fails in its entirety.
_______________________________________
Vivian Jackson
Equality Officer
5 February, 2013
1 EDA 061
2 EDA 061
3 [1998] IRLR 73
4 DEC-E2006-042
5 EED037
6 A Health and Fitness Club v A Worker EED 037
7 EDA 061
8 [1998] IRLR 73
9 DEC-E2006-042
10 EED037
11 EDA 121
12 [2003] IRLR 285
13 Unreported UK EAT 5 October, 2011
14 EDA 061
15 [1998] IRLR 73
16 DEC-E2006-042
17 EED037
18 Humphries v Westwood Fitness Centre [2004] 15 ELR 296
19 EED037
20 EED0410
21 See A Government Department v A Worker EDA 0612
22 DEC-E2009-111
23 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.
24 EDA 106