DEC-E2013-128

EQUALITY OFFICER'S DECISION NO: DEC-E/2013/128

PARTIES

A Complainant

Vs

A Respondent
(Represented by Arthur Cox Solicitors)

FILE NO: EE/2011/297 & 298

Date of issue: 7th of October, 2013

1. Dispute

1.1 This dispute involves a claim by a complainant, that he was discriminated against by a respondent, on grounds of disability in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to promotion, conditions of employment and other. There are also claims of harassment and victimisation and of the respondent's failure to provide him with reasonable accommodation. The complainant has also claimed Equal Pay with two named comparators.

2. Background

2.1 The complainant referred complaints under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 22nd of February, 2011 alleging that the respondent had discriminated against him on grounds of disability when he was not permitted to avail of the respondents "Business Resilience Policy" which enabled employees to work from home during bad weather conditions despite the fact that the complainant has a physical disability which makes it dangerous for him to venture out in conditions of snow and ice. The complainant also submits that he was subjected to bullying and harassment by his manager following his diagnosis with Bipolar disorder in September 2009. In addition the complainant submits that he was discriminated against on grounds of his physical and mental disabilities in relation to the company's disciplinary and grievance procedure and in relation to access to promotion and that he was victimised following a complaint of discrimination to his employer.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case, on 19th of February, 2013 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 13th of May, 2013. Final information and submissions in relation to this matter were received on 5th of July, 2013.

3. Summary of complainant's case

3.1 The complainant submits that he was employed by the respondent from 2nd of October 2006 to 17th of March 2011

3.2 It is submitted that the complainant suffers from Ehlers Danlos Syndrome a condition which he submits makes him prone to dislocating his joints. It is submitted that the complainant also suffers from Bipolar disorder.

3.3 It is submitted that the complainant was subjected to bullying and harassment by his manager following his diagnosis with Bipolar disorder in September 2009.

3.4 The complainant submits that he was discriminated against on grounds of his physical and mental disabilities in relation to the company's disciplinary and grievance procedure.

3.5 It is submitted that the complainant was subjected to the following treatment and that this amounts to harassment and discrimination on grounds of his disabilities

• he was not allowed to avail of the respondents "Business Resilience Policy" which enabled employees to work from home during bad weather conditions
• he was forced to fake illness in order to save his job
• another staff member was promoted and the complainant was not
• he was prevented from attending Senior Managers meetings
• the respondent failed to take action on foot of his allegations that he was being bullied and harassed by his manager.
• the respondent tried to force the complainant to resign from his position
• he was forced to attend the respondents company doctor an inordinate number of times

3.7 It is submitted that the complainant was victimised via a poor performance appraisal following a complaint of discrimination to his employer.

3.8 The complainant is also claiming equal pay with two named comparators.

4. Summary of Respondent's case

4.1 The complainant was employed by the respondent from 2nd of October, 2006 as Team Leader (Officer) in the Financial Reporting Department.

4.2 The respondent submits that it was notified of the complainants 'Ehlers Danlos Syndrome' on 24th of May 2010 and that it was notified of his Bipolar two in September 2009 following the complainants certified sick leave on this basis.

4.3 The respondent denies that the complainant suffered any adverse treatment on the grounds of disability or otherwise.

4.4 The Respondent operates a 'Business Resilience Policy' which permits those classified as business critical to work from home to ensure business continuity during large scale disruptions including inclement weather.

4.5 The respondent invoked its disciplinary procedure against the complainant by reason of pornography having been uploaded from his company computer. The complainant was suspended on full pay during this investigation.

4.6 The sanctions applied in relation to this disciplinary matter included a final written warning and a 12 month freeze on salary increase and bonus.

4.7 The complainant was promoted to Audit Leader on 1st of August 2008 and reported to Mr. S, Audit Manager until Mr. S's redundancy in September 2010. The complainant then reported to Mr. K Audit Project Specialist.

4.8 The complainant's allegation of being treated less favourably than Ms. M relates to July 2009 and pre dates the respondents being informed of either his physical or mental disability.

4.9 The complainant raised a formal complaint on 16th of December, 2010. The respondent investigated the matter and a grievance meeting was held on 9 February, 2011. The investigation was undertaken by Ms. D who was General Manager in another branch of the organisation. A detailed letter confirming the findings of the investigation was issued to the complainant on 26th of April, 2011.

4.10 The complainant resigned from his employment on 18th of February, 2011 giving one months notice of termination expiring on 18th of March, 2011. The complainant on 22nd of February, 2011 prior to the findings of the grievance issue submitted his complaint to the Equality Tribunal.

4.11 The respondent made all reasonable attempts to accommodate the complainant and requested the complainant to attend for medical assessment in order to determine what reasonable accommodation could be made.

4.12 The complainant has submitted a claim for Equal Pay with Ms. M and Ms. G. The respondent submits that any difference in rates of pay was on grounds other than those prohibited by Section 29 of the Acts.

5. Conclusions of the Equality Officer

5.1 The issues for decision by me now is whether or not Northern Trust Management Services Limited discriminated against the complainant on grounds of disability, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 and 2004 in relation to promotion, conditions of employment and other and whether the respondent failed to provide him with reasonable accommodation. I must also make a decision on whether the complainant was harassed contrary to section 14(A) of the Acts and victimised following a complaint to the Tribunal. In addition the complainant is claiming that he is entitled to equal pay with two named comparators in accordance with Section 29 of the Employment Equality Acts, 1998 and 2004.

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 at the Hearing.

5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows - "as between any 2 persons, ... that one is a person with a disability and the other is not or is a person with a different disability".

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

5.3 Disability Ground
5.3.2 In the present case, it is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.
Disability" is defined in Section 2 of the Acts as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".

5.3.3 At the hearing, the complainant, when questioned about his disability submitted that he suffered from both physical and mental disabilities. The complainant submits that he suffers from 'Ehlers Danlos Syndrome' a condition which makes him prone to dislocating his joints. The complainant submits that he also suffers from Bipolar 2 a mental disability which he was diagnosed with in September 2009.

5.3.4 The Respondent at the hearing did not dispute this and submitted that it became aware of the complainants Ehlers Danlos Syndrome on 24th of May 2010 and that it was notified of his Bipolar two in September 2009 following the complainants certified sick leave on this basis. The complainant at the hearing provided details of his diagnoses in relation to these disabilities along with medical evidence in support of same.

5.3.5 I am satisfied based on the totality of the evidence presented that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2008.

5.4 Discriminatory treatment - Business Resilience Policy

5.4.1 The complainant advised the hearing that the respondent operated a policy permitting employees to work from home during adverse weather conditions. The complainant went on to state that he had requested to be allowed to work from home during the bad weather in November 2010, due to his Ehlers Danlos syndrome which would have made him more prone to dislocating his knee joints if he were to take a fall in the ice. The complainant went on to state that the respondent had refused to allow him to avail of their working from home policy despite his disability. The respondent at the hearing stated that it operated a 'Business Resilience Policy' which permits those classified as business critical to work from home to ensure business continuity during large scale disruptions. Those employees who fall into this category are graded from one to three. The complainant was employed in the Audit function which is classified as a grade four i.e. not classified as business critical under the policy. Thus the complainant and all other employees in the respondents Audit Function are excluded from this policy. The respondent, at the hearing, went on to state that having said this, other employees including the complainant are from time to time permitted to work from home. The respondent advised the hearing that those in the Audit department did not often work from home but stated that the complainant worked from home more than others in that Department. The complainant at the hearing agreed that he worked from home as the need arose as he lived near the airport and it was often convenient for him to work from home due to the fact that his job involved travelling to and from meetings.

5.4.2 The respondent at the hearing stated that the complainant generally decided when it suited him to work from home and went on to state that this had never been an issue until November or December 2010 when the complainant had emailed to say that due to his physical disability he would be unable to travel to work during the forecast bad weather, due to his disability and stating that he would not be taking sick leave but that he would instead be working from home. Mr H witness for the respondent advised the complainant that it was expected that all employees would endeavour to attend work but that they would not, however, expect anyone to take undue risks during their journey to work and would not force anyone to attend work in such situation. Mr. H went on to state that no one was being forced to come to work but that it was a matter for the complainant and his direct manager to agree how his absence would be treated as per the company's Absence Policy. Mr. H advised the hearing that he had also made reference to the complainant's concerns in relation to his health and had suggested that the respondent would arrange for a medical assessment with the company doctor to discuss his condition and how it impacts his health and ability to travel to and from work. The respondent heard no more on the matter and the complainant attended work during the period in question as the forecast bad conditions did not materialise. The respondent went on to state that it had later referred the complainant for a medical assessment in order to determine what accommodations were necessary but that he had refused to attend.

5.4.3 I will first of all deal with the claim that the complainant was discriminated against by the respondents 'Business Resilience Policy'. It is clear from the evidence above that the 'Business Resilience Policy' applied to a particular class of employee who were graded from one to three as being business critical. It is also clear that the complainant was not covered by this policy. In addition it is clear that the complainant was not precluded from working from working from home and that he did so regularly. Thus I am satisfied, from the totality of the evidence adduced in relation to this matter that the complainant was not discriminated against on grounds of his disability in relation to this matter. I will examine the reasonable accommodation aspect of the complaint separately.

5.5 Disciplinary Procedure
5.5.1 The complainant advised the hearing that he had been subjected to an investigation under the respondent's disciplinary procedure due to pornographic images being discovered on his company computer. The complainant went on to state that he had been out of the office when the discovery was made and thus couldn't have been responsible. The respondent at the hearing stated that the complainant had admitted responsibility for the images on his computer but had stated that his brother in law to be had accessed his computer and downloaded the images. The complainant had advised the respondent, at the time, that he had written down his password in a notebook, as his memory was not good due to the Bipolar medication that he was on, and had stated that his brother in law had accessed the password in the notebook and downloaded the images. Thus, the complainant had admitted responsibility for the offence. The complainant at the hearing, acknowledged that he had advised the respondent at the time that this was the case but stated at the hearing that this story was not true as he doesn't even have a brother in law. The complainant went on to state that he had made up this story at the time of the investigation as his manager at the time, Mr. S, had told him to do so. Mr. S was not present at the hearing and has not worked for the respondent since 2010. I find the fact that the complainant has now admitted that his earlier defence to the allegations was completely made up and that he doesn't even have a brother in law, calls into question his credibility as a witness.

5.5.2 In any event, based on the facts at hand, what is clear from the evidence adduced in relation to this matter is that the respondent conducted an investigation and applied a sanction based on the information provided to them at that time by the complainant. The complainant had admitted to an offence which was a breach of the respondent's property and systems and it's Dignity at Work policy. The respondent applied the sanction of a Final Written Warning with a twelve month freeze on salary. The respondent at the hearing stated that it could have dismissed the complainant for such an offence but that it instead chose to be more lenient given the circumstances. I am satisfied based on the totality of the evidence adduced in relation to this matter that the complainant was not treated less favourably than a person without a disability or with a different disability, given the circumstances. I am also satisfied from the totality of the evidence adduced that the sanction applied was open to the respondent under its disciplinary procedures. Accordingly I am satisfied based on the totality of the evidence adduced in relation to this matter that the complainant was not discriminated against or harassed by the respondent in relation to this matter on grounds of his disability.

5.6 Discrimination due to Bipolar- Forced to fake illness
5.6.1 The complainant advised the hearing that he had been discriminated against by the respondent following his diagnosis with Bipolar. He advised the hearing that he had in September 2010 been forced to fake an episode of his Bipolar at the request of his manager Mr. S, in order that Mr. S could during his absence raise the profile of another staff member Ms. G. The complainant went on to state that he had at this time been absent from work for a number of weeks. The respondent at the hearing stated that the complainant had been absent from work for a period of 6-8 weeks in September 2010 and that this absence had been certified as being due to an incident of Bipolar which had occurred following the death of the complainant's mother. The respondent stated that the complainant had been certified by his doctor for this period and that he returned to work at the end of September. The respondent at the hearing stated that they had engaged in correspondence with the complainant following the news of his mother's death and produced emails offering condolences to the complainant to which the complainant had responded with thanks. The respondent also advised the hearing that Mr S had received a call from the complainant following his mother's death. The respondent advised the hearing that the complainant had taken time off the following month for his mother's month's anniversary mass. This was supported by emails between the complainant and the respondent.

5.6.2 The complainant at the hearing acknowledged that such correspondence took place but stated that his mother hadn't died and that he had faked the episode of Bipolar to take time off work at the request of Mr. S. Again the complainant is admitting to having fabricated an entire story to take time off work. The complainant is now stating that he wasn't sick during the time in question and that he faked the episode of Bipolar, in addition he is now stating that he lied about his mother's death. I find that this again brings into question the credibility of the complainant as a witness. Accordingly I am satisfied based on the totality of the evidence adduced in relation to this matter that the complainant was not discriminated against or harassed by the respondent in relation to this matter on grounds of his disability.

5.7 Grievance Procedure
5.7.1 The complainant advised the hearing that he was discriminated against by the respondent when it failed to take action in response to allegations of bullying and harassment which he had made against his manager Mr. S and other managers within the respondent organisation. The respondent at the hearing stated that the complainant raised a formal complaint against Mr. S and a four other individuals on 16th of December, 2010. The respondent advised the hearing that an investigation was undertaken on foot of his complaint and that it was assigned to Ms. D who was General Manager in another branch of the organisation and who had been with the organisation for twenty four years. A grievance meeting was held on 9 February, 2011 which was attended by the complainant and Ms. D. The respondent went on to state that a detailed letter confirming the findings of the investigation was issued to the complainant on 26th of April, 2011 (submitted in evidence). This letter consisted of a twelve page document examining the issues raised in the complainant's grievance letter and meeting of 9th of February 2011 and making findings in relation to each of the issues raised. The respondent stated that the complainant's allegations were not upheld and he was informed of his right to appeal that decision but they added that the complainant did not appeal that decision.

5.7.2 The complainant has also submitted that the investigation did not conclude until April 2011 after he had left the company. Witness for the respondent Ms. D was present at the hearing and stated that she had in the course of her investigation interviewed all of the relevant personnel which meant meeting and interviewing eleven people. Ms. D advised the hearing that her investigation took three months to conclude as she was based in the Limerick branch and had to meet with and interview eleven people from the Dublin and UK offices many of whom travelled due to the nature of the work, as well as documenting her findings and conclusions. Ms. D advised the hearing that she investigated all of the complainant's allegations but could not find any evidence to substantiate the allegations. She also advised the hearing that the complainant did not appeal the outcome of the investigation. The complainant at the hearing agreed that he did not appeal the decision. It is agreed that the complainant handed in his one months notice on 18th of February 2011 prior to the findings of the grievance issue. There is a dispute as to the circumstances surrounding the complainant's resignation which I will examine in detail below. However, the matter at issue here is whether the respondent failed to take action on foot of the complainant of bullying and harassment. I am satisfied from the evidence adduced by the respondent that the allegations made by the complainant were investigated and based on that investigation findings were made and notified to the complainant. In addition, I am satisfied that the complainant was offered the chance to appeal these findings but chose not to avail of this option. Accordingly I am satisfied based on the totality of the evidence adduced that the respondent did not discriminate against the complainant on grounds of his disability in relation to these matters.

5.8 Equal Pay
5.8.1 The complainant advised the hearing that both Ms. M and Ms. G were paid more than he was and that this was due to his disability. The respondent has submitted that there are grounds other than disability for the differential in pay. It emerged at the hearing that Ms. G and Ms. M were employed at the same grade as the complainant but that they held higher Corporate titles which entitled them to different bonuses and allowances. This resulted in Ms. M and Ms. G both coming out with a higher remuneration package than the complainant. The complainant submits that this is due to the fact that he has a disability. The respondent advised the hearing that Ms. M was employed in June 2007 and that her starting base salary was higher than that of the complainant due to her experience and the conditions necessary for her recruitment at that time. The respondent advised the hearing that Ms. M had more experience than the complainant having worked in the audit area for a number of years and that they had head hunted her and had to offer her a substantial remuneration package in order to lure her to work for the company at a time when market forces meant that remuneration packages in that area for someone with her level of experience were very competitive. The complainant at the hearing agreed that Ms. M did have more experience than he did. The respondent also advised the hearing that Ms. M had been given this salary on her recruitment in 2007 at a time when the respondent was unaware of the complainant's disability and thus the salary differential could not be related to the complainant's disability. The respondent also advised the hearing that Ms. M was promoted to Audit Project Manager Second Vice President in April 2010 a more senior level than the complainant and a level which attracted greater remuneration.

5.8.2 As regards Ms G the respondent submitted that Ms. G started on a lower salary than the complainant. The complainant advised the hearing that Ms. G was less experienced than himself but that when you include bonuses and allowances accruing to her due to her corporate title, she has a higher remuneration package than the complainant. The respondent at the hearing stated that Ms. G had in fact started on a lower base salary than the complainant but that she had been given a corporate title of Second Vice President upon her recruitment to the organisation in 2008. The respondent advised the hearing that it was this corporate title and the benefits accruing from that corporate title which led to Ms. G's overall remuneration package being greater than that of the complainant.

5.8.3 The respondent added that this title and associated benefits was given to Ms. G upon her recruitment in April, 2008 at a time when the respondent had no knowledge of the complainant's disability. It has been accepted that the respondent only became aware of the complainant's Ehlers Danlos Syndrome on 24th of May 2010 and that it was notified of his Bipolar 2 in September 2009 following the complainants certified sick leave on this basis. Thus the respondent's decision to grant Ms. G a higher corporate title than that of the complainant cannot have been influenced in any way by the complainant's disability as it was not at that time aware of such disability.

5.8.4 The respondent advised the hearing that the complainant had received several promotions and accompanying salary increases during his employment with the respondent but stated that part of the sanction applied to the complainant following the disciplinary procedure which dated from 22 January, 2010 consisted of a twelve month freeze on salary and bonus. The respondent advised the hearing that the complainant's increase in salary and bonuses were stopped for this reason and stated that this had been advised to the complainant in the letter of 2nd of February, 2010 advising him of the sanction to be applied. I am thus satisfied based on the totality of the evidence adduced in relation to this matter that the reasons given for the differences in the remuneration are genuinely attributable to grounds other than disability and the respondent can avail of the defence set out in Section 29 (5) of the Act. Thus the complainant is not entitled to claim Equal Pay with Ms. M or Ms. G . In addition I am satisfied that the complainant was not discriminated against or harassed by the respondent in relation to this matter on grounds of his disability and is not entitled to claim equal pay with either Ms. M or Ms. G whom he named as comparators.

5.9 Promotion
5.9.1 The complainant has submitted that Ms. M was promoted while he was not and that this was due to his disability. The respondent at the hearing stated that Ms. M was promoted to Audit Project Manager and that this was based on her experience and performance. The respondent also advised the hearing that the complainant had received several promotions during his employment and provided details of same. The complainant at the hearing stated that Ms. M had been given favourable treatment for personal reasons and due to her relationship with Mr. S. I am satisfied that the complainant in this instance has not provided any evidence to substantiate the allegation that that the reason Ms. M was promoted and he was not, was due to his disability. I can find no connection between circumstances surrounding the promotion and the existence or non existence of a disability. The complainant also stated that he was told by Mr. S that he would not get promoted due to his disciplinary record.

5.9.2 The respondent added that the sanction imposed as a result of the disciplinary procedure also puts a stay on corporate title promotion for a period of twelve months. I am satisfied that it is the case that the respondent's policy is that promotions are stayed following such a disciplinary sanction and that the complainant was treated in accordance with this policy. Again this does not substantiate the claim that the complainant was not promoted due to his disability. In the circumstances the complainant was not treated any less favourably than someone without a disability or with a different disability. Accordingly I am satisfied from the totality of the evidence adduced I relation to this matter that the complainant was not discriminated against or harassed on grounds of his disability in relation to this matter.

5.10 Excessive Medical Assessments
5.10.1 The complainant has submitted that the respondent forced him to attend excessive medical assessments and that this amounts to discrimination and harassment on grounds of his disabilities. The respondent advised the hearing that it had referred the complainant for medical assessment following extended sick leave during the period August 2009 to October 2009. The complainant attended with Dr K on 4th of November 2009 who indicated that the complainant "had some problems and had not been performing as you would normally expect" The report went on to state that the complainant had requested to maintain his own medical confidentiality but that he was certified as fit to work.

5.10.2 The respondent advised the hearing that it had again referred the complainant for medical assessment following a three week absence in September 2010 which is referred to at pgh 5.7.1 above. The complainant had, at that time, advised the respondent that he was unable to attend work due to an incident of his Bipolar disability which had affected him following the death of his mother. However the complainant later stated that he had faked this episode on the request of his manager and stated that his mother had not died. As I have found the complainants credibility to be questionable in relation to this matter I do not find his evidence in relation to this matter to be credible and thus prefer the evidence of the respondent in this matter.

5.10.3 The respondent advised the hearing that it referred the complainant to the company doctor again in December 2010 when issues arose in respect of the complainant 's difficulty in travelling to work in bad weather. The respondent advised the hearing that it was at this time the complainant made reference to his having a disability which made it difficult for him to travel to work in bad weather. The respondent has also argued that this referral was in keeping with Section 16 of the Employment Equality Acts and the requirement to obtain expert assessment in order to determine whether reasonable accommodation was required. Reasonable accommodation is examined in detail at pgh 6.4 below. The complainant refused to attend the company doctor on this occasion. Bearing in mind the fact that the complainant, during the time period in question, disclosed two disabilities to the respondent, I am satisfied that the respondent was within its rights to refer the complainant for assessment by the company doctor and to ascertain whether he was in fact fit to attend work or whether any reasonable accommodation was necessary. I am satisfied based on the totality of the evidence adduced in relation to this matter that the respondent was justified in referring the complainant for medical assessment as each referral followed either a long period of sick leave or the disclosure of a disability. In the circumstances and based on the totality of the evidence adduced in relation to these matters I am satisfied that the referrals to the company doctor do not amount to discrimination or harassment of the complainant by the respondent, in relation to these matters.

6. Victimisation

6.1 The complainant submits that he was victimised following his complaint of discrimination against Mr. S and other managers within the respondent organisation. The complainant advised the hearing that he was marked down from a 4 to a 3 in his performance appraisal for 2010. The complainant submits that this rating was a direct result of his having lodged a complaint of discrimination against his manager. The respondent at the hearing denied that this 3 rating in any way related to the complaint of discrimination. The respondent advised the hearing that this matter was investigated and Mr. W had summarised areas where the complainant required improvement. The respondent advised the hearing that the appraisal was fair and balanced and that there were some concerns about the complainant's performance in the area of effective communication and team working. The respondent referred to an incident where the complainant had displayed aggressive behaviour towards a customer. The respondent stated that this matter had been raised with the complainant. The respondent went on to state that the complainant was hardworking productive and had good technical skills but that it had also taken into account the fact that the complainant had been the subject of a disciplinary sanction in relation to an issue of gross misconduct during the period in question. The respondent stated that it is not unusual for an employee who has committed gross misconduct to be marked down during the period under review as was the case during the period covered in the 2010 review. The respondent advised the hearing that this grade may have taken into account the finding of gross misconduct against the complainant during the period in question but stated that it was in no way connected to the complainant's claim of discrimination. The complainant has provided no evidence to substantiate the claim that the grade awarded in his 2010 performance appraisal was a reaction to his earlier complaint. In the circumstances and based on the totality of the evidence adduced in relation to this matter I am satisfied that the rating of a 3 in his 2010 performance appraisal does not amount to victimisation of the complainant by the respondent, in relation to this matter. I am also satisfied that the complainant was not subjected to discrimination or harassment, on grounds of disability in relation to this matter.

6.2 Forced to resign
6.2.2 The complainant submits that he was forced to resign or risk dismissal for bringing false allegations. The complainant submits that this amounts to further victimisation as a result of his lodging a complaint of discrimination with his employer in December 2010. The respondent submits that the complainant resigned of his own volition in February 2011 giving one months notice.

6.3 Preliminary Issue- Unfair Dismissals Act and Section 101
6.3.1 The respondent at the hearing submitted that the complainant had brought a separate claim for constructive dismissal in relation to this matter under the Unfair Dismissals Act. The respondent advised the hearing that this claim was the subject of a hearing before a Rights Commissioner on 26th of November, 2012. The respondent stated that that the Rights Commissioner found against the Complainant and in favour of the Respondent. The respondent submits that the complainant is precluded from seeking redress before the Equality Tribunal as a decision of a Rights Commissioner has already issued in the matter.

6.3.2 It is a fact that Section 101 of the Employment Equality Acts precludes an employee from seeking redress in respect of a dismissal before the Tribunal if, a Rights Commissioners has issued a recommendation in the matter. The Rights Commissioner in this instance made a finding that he did not have jurisdiction to deal with the claim as it did not comply with the provisions of Section 8(2) of the Unfair Dismissals Act, as the claim was presented to the Commission whilst the complainant was still in employment. The claim in question was submitted to the Rights Commissioner on 22nd of February, 2011 and referred to the complainant's date of dismissal as the 18th of February 2011 despite the fact that the date of termination of his employment was 18th of March, 2011 taking into account the one month notice period. The Rights Commissioner thus concluded that the claim was invalid due to its being submitted prior to the complainant's termination of employment.

6.3.3 The matters referred to the Tribunal in respect of the complainant's termination of employment relate to allegations that the complainant was forced to resign on the 18th of February, 2011 and that this amounts to victimisation on foot of his making a complaint of discrimination to his employer. This resignation was accompanied by a 1 month notice period terminating on 18th of March, 2011. Thus the effective termination date of the complainant's employment was the 18th of March, 2011. As this alleged forced resignation relates to the same termination of employment which the complainant has previously submitted as an unfair dismissal to the Labour Relations Commission and as this matter has previously been the subject of a Rights Commissioner recommendation I am precluded under Section 101(4)(b) of the Employment Equality Acts from investigating the complainants termination of employment and the associated allegations that this termination occurred as a result of his being forced to resign by the respondent.
Accordingly, I am satisfied that the complainant in this instance is precluded by Section 101 from seeking redress in respect of this matter before the Tribunal.

6.4 Reasonable accommodation

6.4.1 Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability - this approach was endorsed in Humphries v Westwood Fitness Club ¹.

6.4.2 I am satisfied from the evidence adduced above that the complainant was a person with a disability for the purposes of the Act and that the respondent was aware of those disabilities. The respondent has submitted that it became aware of the complainants Ehlers Danlos Syndrome on 24th of May 2010 and that it was notified of his Bipolar two in September 2009 following the complainants certified sick leave on this basis.

6.4.3 The complainant has submitted that the failure to allow him to avail of the respondents Business Resilience Policy which permits working from home amounts to a failure to provide him with reasonable accommodation. I have examined the respondents Business Resilience Policy at pgh 5.4 above and am satisfied based on the totality of the evidence adduced that this policy applies to a group of individuals who due to their business function were graded as business critical and are thus required to work from home in the event of large scale disruptions where working from the office may not be possible. I have found that the complainant was not covered by this policy due to the fact that he was part of a function and grade (Audit function grade 3) which was excluded from this policy. I have made a finding at pgh 5.4.3 that the application of this policy and the exclusion of the complainant from this policy was not discriminatory as it applied equally to all those outside of the particular grade and function.

6.4.4 Those grades who are covered by the Business Resilience policy are permitted to work from home during large scale disruptions. The respondent at pgh 5.4.1 above has submitted that the complainant was permitted to work from home occasionally despite being excluded from this policy. The complainant at the hearing agreed that he did work from home on occasion as it suited him due to his living near the airport and due to the amount of travel involved in his work. It is the complainant's submission that he was not permitted to avail of the respondents Business Resilience Policy to work from home during bad weather conditions, which due to his Ehlers Danlos Syndrome made it more dangerous for him to travel in icy conditions and that this amounts to a failure to provide him with reasonable accommodation. The respondent submits that it had been notified of the complainant Ehlers Danlos Syndrome in May 2010 but that no accommodation had been required or requested at that time. The respondent stated that a letter had been submitted, at that time, from the complainant's doctor indicating that he may on occasion, due to injury, need to work from home. Both parties agreed that the complainant was not suffering from any injury in December 2010 when the request was made. The complainant agrees that his physical disability did not affect his ability to do his job on a day to day basis and so he had not required any accommodation however, he stated that it only became an issue in December 2010 when the forecast icy conditions presented a difficulty for him travelling to work.

6.4.5 The respondent at the hearing stated that the complainant had raised this issue by email to Mr. M and Mr. H in December 2010 when he stated that he would be availing of the Business Resilience Policy in order to work from home. The respondent stated that he had advised the complainant that he was not covered by the Business Resilience Policy but that it was a matter for him and his manager to discuss how his absence from work would be treated in accordance with the company's absence policy. Mr H stated that one of those options for consideration between the complainant and his manager was the option of 'working from home' which Mr. H advised the complainant by email on 16th of December, 2010.

6.4.6 The respondent stated that there had never been an issue with the complainant working from home but, as he was now stating that his disability was preventing him from attending work they felt that such a matter required further investigation and so referred the complainant to the company doctor as per their obligations under Section 16 of the Acts. The respondent added that the letter from the complainants doctor back in May 2010 had stated that he may need to work from home on occasion due to injury but stated that the complainant had pointed out to them at the time of this request that he was not injured or ill but was seeking to avail of the 'Business Resilience Policy'. The respondent stated that they advised the complainant that the possible absence from work due to his disability should be discussed with his line manager in order to agree how it would be recorded and added that one of the options available was 'working from home'. The respondent stated that they were not forcing the complainant to come to work and didn't want anyone taking undue risks travelling to work and had advised him of this by email but they felt that further action was now necessary as his inability to get to work due to his physical disability now raised the question of whether appropriate measures were required. The respondent, at this time referred the complainant to the company doctor following this request but the complainant refused to attend. The complainant submitted that he had been asked to attend the company doctor excessively and felt that this amounted to discrimination and harassment on grounds of disability. I have made a finding at pgh 5.10.3 that this did not amount to discrimination or harassment of the complainant.

6.4.7 The complainant had attended the company doctor prior to this for other absences and had been certified as fit to attend work. The respondent at the hearing stated that they felt a further assessment was necessary due to the complainants issue with travelling to work which he related to his disability but stated that the complainant refused to attend.

6.4.8 While the risk of injury for the complainant travelling to work in icy conditions may have been greater due to his disability, this may be a Health and Safety concern for the complainant I am not satisfied however that this places an obligation on the respondent to facilitate the complainant through working from home in circumstances where the complainant's ability to do the job was not in question and where there was no question of taking any decision which would have been to the detriment of the complainant.

6.4.9 Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they have been employed. In the case of A Health and Fitness Club -v- A Worker² the Labour Court set out the approach that should be taken in order that an employer can rely upon this defence, and indicated that an employer who decides that an employee 'is not fully capable,' must ' make adequate enquiries (including looking at medical evidence) so as to establish fully the factual position in relation to the employee's capacity' and, if it appears that the employee is not capable must consider 'what if any special treatment or facilities may be available by which the employee can become fully capable'.

6.4.10 In the present case I am satisfied that the complainant had not been subjected to any discrimination in relation to this matter. I am also satisfied that no decision had been taken to the detriment of the employee i.e. the employee had not been demoted or dismissed or in any way subjected to less favourable treatment in respect of this matter. In addition no question had arisen in relation to the complainant's ability to do the job therefore no obligation arises to provide reasonable accommodation under Section 16(3).

6.4.11 In any event, it is clear from the evidence adduced here that the respondent, when it became aware that the complainant was anticipating problems with travelling to and from work in bad weather conditions, which the complainant attributed to his disability, attempted to make further inquiries into what if any special measures could be taken to assist the complainant in attending for work. The complainant in this case, refused to attend the company doctor and in this regard frustrated the respondent's attempts to ascertain what if any accommodations were necessary. In addition it emerged at the hearing that the forecast bad weather conditions which were the subject of this request did not materialise and the complainant attended for work as usual.

6.4.12 Having regard to the foregoing, I am satisfied that the respondent, despite no obligation to do so, attempted to make appropriate enquiries to ascertain the extent of the employees condition but was thwarted in its attempts by the complainants failure to co-operate.

6.4.13 Accordingly I am satisfied based on the totality of the evidence adduced in relation to this matter that the respondent did not discriminate against the complainant on the disability ground in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts.

6.5 Other allegations
6.5.1 The complainant has submitted other allegations relating to matters such as individuals spreading rumours about him, accusations in relation to the consumption of alcohol and his being prevented from attending various meetings. Many of these allegations have already been dealt with in the respondent's internal investigation of his complaint of 16th of December, 2010. In addition, I have examined the evidence of both parties, both written and oral, in relation to these matters, and from the totality of the evidence adduced, I am satisfied the complainant was not subjected to discrimination or harassment on grounds of disability in relation to these matters. I do not intend to detail each and every one of these allegations in my findings. I am guided in this matter by the recent Judgment of Ms. Justice Iseult O'Malley in Angela T Carr and The Financial Services Ombudsman Vs EBS Building Society ³ which states

88. I consider that the obligation of the respondent to give the "broad gist" of his reasons in a written finding means that he is not obliged to deal on a point-by-point basis with every argument made by a complainant. This was a case with extensive written submissions. The respondent is, within his discretion and relying on his own expertise in the area, entitled to select and determine those issues that appear to him to be relevant.

6. DECISION OF THE EQUALITY OFFICER.

6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -

(i) the complainant was not discriminated against on grounds of disability, pursuant to section 6(2) and contrary to section 8 of the Acts in relation to the following matters

• the respondents Business Resilience Policy
• the respondents disciplinary procedure and sanction imposed in relation to an offence of gross misconduct
• the allegation that he was forced to fake an illness in order to save his job
• the respondents Grievance Procedure and their alleged failure to take action on foot of his complaint of bullying and harassment by his manager.
• the allegation that another staff member was promoted and the complainant was not
• the allegation that he was forced to attend the respondents company doctor an inordinate number of times
• other allegations

(ii) the complainant was not harassed by the respondent on the ground of disability pursuant to section 6(2) and contrary to Section 14A (7) of those Acts in relation to the following

• the respondents Business Resilience Policy
• the respondents disciplinary procedure and sanction imposed in relation to an offence of gross misconduct
• the allegation that he was forced to fake an illness in order to save his job
• the respondents Grievance Procedure and their alleged failure to take action on foot of his complaint of bullying and harassment by his manager.
• the allegation that another staff member was promoted and the complainant was not
• the allegation that he was forced to attend the respondents company doctor an inordinate number of times
• other allegations

(iii) the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(h) of the Acts in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts.

(iv) the respondent did not discriminate the complainant on the ground of race pursuant to section 6(2) regarding an entitlement to Equal Pay with two named comparators in accordance with the provisions of Section 29(1) of the Acts

(v) the complainant was not victimised by the respondent following a complaint of discrimination contrary to section 74(2) of the Acts in relation to his 2010 performance appraisal

______________
Orla Jones
Equality Officer
7th of October, 2013

Footnotes:

¹ [2004] 15 ELR 296

² Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)

³ Neutral Citation [2013] IEHC 182 No. 2012/132MCA