The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-104
PARTIES
Robert Reid
(Represented by Fiona Gallagher B.L. instructed by Daniel J. Reilly & Co. Solicitors)
AND
STT Risk Management Limited
(represented by Michael Mac Namee instructed by DAS Group)
File reference: EE/2010/889
Date of issue: 5 September 2013
HEADNOTES: Employment Equality Acts - Sections 6, 8 and 16 - Disability - Harassment - Discriminatory Dismissal - provision of reasonable accommodation.
1. DISPUTE
1.1 This dispute concerns a claim by Mr Robert Reid that he was discriminated against by STT Risk Management Limited on the grounds of disability contrary to section 6 (2) (g) of the Employment Equality Acts in that the respondent failed to provide him with reasonable accommodation in accordance with section 16 of the Acts, that he was harassed in accordance with section 14A of the Acts and that the respondent dismissed him in a victimisatory manner contrary to section 74 (2) of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 30 November 2010 under the Employment Equality Acts. On 21 January 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I held a hearing over two days on 16 April 2013 and 15 May 2013.
2. COMPLAINANTS' SUBMISSION
2.1 The complainant started working for the respondent in 2001 as a security agent on a part-time, casual basis. In October 2003 he had an accident and suffered the loss of sight in his left eye. He submits the respondent was fully aware of this. In March 2004 he returned to work and subsequently undertook training and was issued with a Rail Personal Track Safety Certificate. In May 2005 he started full-time employment with the respondent; he was based in the office and he worked from Monday to Friday from 8am to 4pm.
2.2 The complainant submits that in May 2006 he was moved to an Operations Assistant/Supervisor role with responsibility for monitoring different sites. There were a number of disputes between the complainant and the respondent and in September 2007 he was locked out of his office in Connolly Station for a number of weeks.
2.3 The complainant submits that in March/April 2008 he was prevented from driving company vehicles until he produced a doctor's certificate, despite having been a company driver for a number of years.
2.4 In 2008 his duties were changed again and he provided lunch relief for security agents in Heuston and Connolly Stations for approximately 4 hours per day. The rest of the time he was office based. In October 2008 the complainant was told to sign a new contract of employment but he refused. Then in November 2008 the complainant was told by the Operations Manager (Mr A) that he was to be moved to nights permanently. The complainant informed Mr A that because of his disability he was not able to work permanent nights, as he found driving at night placed an excess strain on his good eye. Despite this he was moved to permanent nights in December 2008 and his hours were cut from 40 to 37.5 per week. In February 2009 the complainant brought a complaint about the change in his working hours to the Labour Relations Commission (LRC). Following a hearing on 3 September 2009 a settlement was brokered on 12 September 2009 when it was agreed that he would work as a Security Agent in Heuston Station from Tuesday to Saturday from 7am - 3pm and his wages would be maintained.
2.5 In November 2009 the complainant submits he was pressured into signing a false statement regarding a prosecution but he refused to sign the statement. Thereafter he alleges that the Assistant Operations Manager (Mr B) threatened his employment unless he signed the statement. He made a formal complaint about the incident to the HT Manager but the complaint was never resolved.
2.6 The complainant submits that in April 2010 he was informed he would lose his Operations Assistant's additional pay of €50 per week and he made a complaint to the LRC about this.
2.7 On 4 August 2010 he received a roster requiring him to work Sunday, 15 August 2010, despite the LRC agreement. The complainant told Mr A that he could not work this day as he had plans to be out of the country. Mr A insisted on the complainant providing a letter providing a letter stating why he could not work that day but the complainant refused. On 6 August the complainant made an official complaint about Mr A's behaviour to the HR Manager.
2.8 The complainant submits that on 30 August 2010, whilst on annual leave, he received an email from Mr A with a roster for 4 - 17 September 2010 showing that he would be working continuous night shifts. The complainant considered this to be discrimination on the basis of his disability. He complained to Mr A that it was in breach of the LRC agreement and asked for a reason for the change but none was provided. The complainant also complained to the HR Manager and was told the matter was between the complainant and Mr A. He went to his doctor on 6 September 2010 and on his return to work he gave a doctor's letter to Mr A stating that he would benefit from working the day shift owing to his disability. He also complained by letter dated 9 September 2010 to Mr A and the Health & Safety Manager that he found it difficult to drive at night on account of his disability and that by changing his working hours to nights the respondent was not reasonably accommodating him. On 10 September 2010 Mr A wrote to the complainant stating that he was organising a medical examination with the respondent's doctor and in the meantime changed the complainant's hours back to days. He was seen on 20 September 2010 by the CIE doctor who was asked to assess if the complainant was fit to hold a Personal Track Safety Certificate, if he was fit to work day and night shifts, and if he was fit to drive in all light conditions. The doctor found he was not fit to hold a Personal Track Safety Certificate, he was fit to work day shifts but not fit to work night shifts, as it involved travelling on board trains, and he was fit to drive in all light conditions. The respondent sought clarification as to whether his finding that the complainant was fit to work the dayshift was based on the assumption that he would not be engaged in work on or near the railway. The doctor replied that if the complainant was required to travel on board trains during the day shift then he would he unfit for the dayshift.
2.9 At a meeting on 23 September 2010 the complainant was told that the respondent's contract with Irish Rail stated that all agents must be track safety certified and he was suspended with full pay from this date. At a further meeting on 11 November he was told he could not work on trains and that no other work was available. The complainant was asked if he had any ideas as to what could be done and told to go away and think about it. At a final meeting on 9 December 2010 the complainant was dismissed on the grounds that he was medically graded as unfit to hold a Personal Track Safety Certificate.
2.10 The complainant submits he could have been reasonably accommodated by being allowed to only work the day shift and that this would not have imposed a disproportionate burden on the respondent. He further contends that the change in hours in such a unilateral manner amounts to harassment as the respondent was aware of the complainant's disability and knew that the change in hours would cause him difficulties, yet no reason was given for the change. Also in dismissing the complainant on the grounds of disability the respondent failed to carry out a correct factual appraisal of the complainant's capacity; in that the CIE doctor was not provided with a detailed description of the complainant's duties.
2.11 The complainant contends he was fit to work dayshift and was at all times fully competent and capable of undertaking the duties for which he was employed. He was not working on board trains at the time of his dismissal. He was working on the concourse at Heuston Station and had been since September 2009.
2.11 The complainant contends he was victimised when he was subject to an investigation into his capability to perform a job he had been doing for seven years, after he complained that he had been discriminated against by the respondent's decision to make him work nights and this decision was based on his disability. Subsequently he was subject to victimisatory dismissal because his complaint to the respondent about the change in his hours to work night shift.
3. RESPONDENT'S SUBMISSION
3.1 The respondent confirmed the complainant started working for them in 2005 as an Operations Assistant. From 2003 until 2005 he worked for the respondent as a self employed contractor. They were aware that in 2003 whilst working as a wood turner he was involved in an accident which damaged his eye.
3.2 The respondent denies the complainant was ever promoted. He worked for them as an operations assistant.
3.3 Whilst the complainant was on annual leave in August 2007, after a period of security breaches the locks to their office in Connolly Station was changed. The complainant was unable to gain access when he returned from leave and was given a set of keys shortly afterwards. He was not locked out if his place of employment.
3.4 In April 2008 the respondent changes its' insurance provider for company vehicles and the new provider required specific information for all authorised drivers. The complainant was asked for medical information because of his eyesight. It was recommended that the complainant did not drive whilst this was being sorted out. Then he was allowed to drive again.
3.5 In November 2008 the respondent had to cut costs and as the complainant was working for them in roles which were not directly recoverable from their client they decided that the complainant had to return to normal security duties. All the day shift posts were filled so the respondent needed to change him to evening/night shift between the hours of 16:00 and 00:30. A meeting was held to clearly outline the respondent's position. The complainant made no mention of his disability or a problem with driving during hours of darkness. His complaint was in relation to work/life balance and that he had become accustomed to working the dayshift. When the complainant made a complaint to the LRC in March 2009 he made no mention of his disability or his ability to drive to and from work and it was not mentioned during the LRC hearing on 3 September 2009. Following the hearing no formal agreement was written. The respondent had indicated they would try and accommodate the complainant's work/life balance but they did clarify to the complainant that because of the nature of the security industry it may be necessary to alter any agreed roster agreement. At a meeting between the respondent and the complainant he was put on a roster that would accommodate him but it was made clear that the schedule was not written in stone and may be changed due to operational circumstances.
3.6 The respondent submits that the complainant refused to sign a written statement for prosecution after it had been typed up. Subsequently the prosecution was withdrawn because the complainant would not sign the statement. He was not threatened with the termination of his employment.
3.7 In April 2010, after a financial review, it was noted that the complainant was still in receipt of un-vouched fuel expenses totalling approximately €50 per week. This facility was withdrawn as part of cost saving measures.
3.8 The complainant was rostered to work overtime on Sunday 15 August 2010 as the respondent was asked to provide extra security officers for GAA special match trains. The complainant said he would be unable to work because of a family commitment. He did not say he would be out of the country. When he refused to work Mr A said he would take him off the roster if he provided written confirmation of his unavailability to work. The complainant agreed to provide the note but then did not supply the note when asked. He was asked for the note on a number of occasions but he was not harassed.
3.9 The complainant was on annual leave from 24 August to 4 September 2010 and Mr A emailed the roster as a courtesy because of the changes to the second week's shift from his normal shift. He had not been changed from dayshift to nightshift. The first week he was rostered to work his normal shift and in the second week he was rostered to work lates and nights to cover illness and leave absences. His roster was not changing to night work indefinitely. When the complainant emailed Mr A objecting to the change, Mr A replied that they could look at it when the complainant returned from leave. On 2 September the respondent received an email from SIPTU saying the company had planned to roster the complainant for night duty and he was concerned about this because of his disability and the impact it would have driving to and from work in the dark. The respondent replied that they were unaware of his disability and in particular his impaired ability to drive due to his eyesight condition. They indicated that a medical assessment would need to be undertaken in order to clarify the issue. When the complainant returned to work on 7 September 2010 he submitted a doctor's note stating he would benefit from working daytime shifts as his driving was better in daylight. The complainant was asked to report to Mr A's office to discuss the rostering situation but the complainant refused. On 9 September 2010 the complainant sent a letter to the respondent's Health and Safety Consultant stating that he would hold Mr A personally responsible if he suffered any injury or accident as a result of the change in working hours. The complainant's roster was then changed so that he worked day shift for week 11 to 17 September 2010.
3.10 Mr A discussed the situation with the Clinic Manager at the CIE Medical Clinic and the issue about the complainant's ability to hold a Personal Track Safety Certificate was raised. The complainant was assessed and the report stated that the complainant was, 1) unfit to hold a Rail Personal Track Safety Certificate, 2) considered fit to work the dayshift but unfit to work the nightshift as this involves travelling on board trains, and 3) fit to hold a 'B' driving licence and to drive in all light conditions. Clarification was sought from the doctor and he stated that "If Mr Reid was required to travel on board trains during the day shift he would be unfit for the day shift." A meeting was held with the complainant on 24 September 2010 and the complainant was told he could not work in Heuston Station or anywhere on or near the railway but they were exploring other possibilities, such as redeployment to Luas operations, the patrol van and the administration office. The complainant and his SIPTU representative were asked if they could identify anything else. The complainant was removed from the roster on full pay.
3.11 At a follow up meeting on 11 November 2010 the respondent told the complainant that there were unable to find a position that did not require the complainant to hold a Personal Track Safety Certificate, that did not present an unacceptable Health & Safety Risk, and that would not be an unacceptable financial burden on the respondent, ie office based.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was harassed on the grounds of disability, if the respondent failed to provide the complainant with reasonable accommodation and if he was dismissed in a victimisatory manner. 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.
4.2 Section 2 of the Acts states: "''disability'' means --
(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."
It is clear that the complainant had a disability within the meaning of the Acts and this is not disputed by the respondent. They were aware of his accident in 2003 but what is disputed by the parties is when the respondent became aware that the complainant considered his disability effected his ability to work certain shifts or to come to work at certain times.
4.3 The complainant states he raised this in November 2008 when he was told that he would be moved to permanent nights. The respondent contends he did not raise his disability at this time. He raised a complaint about the change in hours to the LRC in March 2009 and the wording of the complainant did not raise the issue of his disability as his reason for not wanting to work nights. There was a hearing with the LRC in September 2009 and the complainant's own notes contained references to his disability. The respondent contends the complainant raised issues about his work/life balance at the LRC meeting but did not raise his disability. I note that the subsequent agreement between the complainant and the respondent was not written. The complainant considers that it was a binding agreement for him not to work nights whilst the respondent states they made it clear that it may to necessary to alter any agreement for business reasons.
4.4 On 21 January 2009 the complainant wrote to Mr A with a grievance about his contract of employment and a grievance complaint he raised on 17 November 2008, which was not related to any change in working hours or his disability. On 13 March 2009 he resent this letter to an Assistant Operation Manager and in a paragraph headed 'Working hours' which refers to the Organisation of Working Time Act but gives no details of any particular grievance regarding working hours he had added ' None consideration for my disability'. The respondent replied that they did not know why the complainant had sent this letter as they had dealt with the issues raised in January 2009 on 29 January 2009. There is no further correspondence from the complainant in pursuit of this grievance.
4.5 On 30 August 2010 Mr A sent a roster to the complainant which changed his shift for the second week in September. Initially the complainant objected that this broke the LRC agreement but made no mention of any difficulties the new shift might cause him because of his disability. Then on 2 September a SIPTU representative wrote to the respondent on the complainant's behalf referring to his disability and 'the impact driving to and from work in the dark'. The HR Manager replied that they were unaware of his disability until then and they also pointed out that he was already driving to work in the dark in the mornings in the autumn and winter. They also stated that they wanted the complainant to undertake a medical assessment 'so that we can fully appreciate his condition and level of disability'. The complainant submitted a note from his doctor dated 6 September 2010 which stated that the complainant 'has a defect in his left eye and he would therefore benefit from working the daytime shift at work, as his driving is better by daylight'. On 9 September 2010 the complainant wrote to the Health and Safety Consultant, copied to Mr A, in which he held Mr A responsible if he was injured or killed whilst working the night shift. The Health and Safety Consultant recommended that the complainant be taken off the roster pending the medical assessment. The complainant was then put back on daytime shifts.
4.6 The complainant attended a doctor in the CIE Occupational Health Unit on 20 September 2010. The respondent told the doctor 'we need to ascertain the following questions:
Is Mr Reid fit to hold a Personal Track Safety Certificate as Mr Reid is due to complete a refresher course at the Inchicore Training Centre?
Is Mr Reid fit to work day and night shifts?
Is Mr Reid to drive in all light conditions?'
The doctor replied as follows:
'(1) Mr Reid is unfit to hold a Rail Personal Track Safety Certificate as his visual acuity is below the standard for such a Certificate.
(2) Mr Reid is considered fit to work the dayshift. However, he is considered unfit to work the nightshift as this involves travelling on board Iarnrod Eireann trains.
(3) Mr Reid is fit to hold a "B" Driving Licence and to drive in all light conditions.'
The doctor was then asked to clarify the complainant's fitness to work the dayshift and replied 'If Mr Reid was required to travel on trains during the dayshift he would be unfit for the dayshift'.
4.7 The respondent held a meeting with the complainant on 24 September 2010 at which he was given a copy of the doctor's report and told the respondent would have difficulty in finding him a suitable placement on the basis of the report.
4.8 A follow-up meeting was held on 11 November 2010 and the respondent told the complainant they could not find any suitable employment for him on the basis of the medical report and warned him that his employment may have to be terminated. They did ask him if he had any suggestions or ideas.
4.9 A further meeting was held on 9 December 2010 and he was informed that there were no positions where he could work without a Personal Track Safety Certificate and his employment was being terminated.
4.10 The respondent was aware that the complainant had lost the sight of one eye and it is accepted that this amounted to a disability. From the evidence presented by both sides I conclude that the respondent had no reason to question the complainant's capability to perform his duties arising from this disability until 2 September 2010 when they received an email from his union representative. The respondent then started to make arrangements for a medical assessment and returned the complainant to the day shift. The medical assessment stated that the complainant was unfit 'to hold a Rail Personal Track Safety Certificate as his visual acuity is below the standard for such a Certificate'. He was dismissed because he could not hold a Personal Track Safety Certificate and the respondent asserts that it was a contractual requirement for 'all our agents working on or near the railway.'
4.11 At the hearing it became clear that the complainant had been issued with a Personal Track Safety Certificate without any test of physical ability. The respondent agreed the complainant was issued this Certificate without any test but stated that it was a condition of their contract with CIE that all staff held a Personal Track Safety Certificate. The contract states 'the contractor agrees ... to ensure that all of the Contractor's personnel undergo appropriate training in Personal Tack Safety as may be required by IE from time to time'. I note that the contract does not explicitly require staff to hold a Personal Track Safety Certificate but to undergo training. The complainant underwent such training as part of his induction. However, they had a medical assessment from a doctor working in the CIE Occupational Health Unit which stated that the complainant was unfit to hold such a certificate. The respondent could not ignore this assessment.
4.12 The Labour Court in A Health and Fitness Club v A Worker (EED037) (and upheld on appeal in the Circuit Court) sets out an approach which can be used in such cases where an employer is considering whether an employee is or is not fully competent to undertake their duties. The Labour Court approach was; "before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions."
Provision of Reasonable Accommodation
4.13 Section 16 (3) & (4) of the Acts states:
"(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person's employer.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability --
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of --
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer's business, and
(iii) the possibility of obtaining public funding or other assistance.
(4) In subsection (3) --
''appropriate measures'' in relation to a person with a disability --
(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself."
4.14 The complainant contends that he could have been reasonably accommodated by being allowed to stay on the day shift permanently. He was working on the concourse and not working on board trains at the time of his dismissal and therefore did not need to go on or near the railway. The respondent countered that the complainant would potentially have to go on or near the line and in direct evidence at the hearing gave examples where someone doing the same job as the complainant would be required to go on or near the line and board trains. In these circumstances they decided they could not risk breaching their contract with Iarnrod Eireann or risk the complainant having an accident as a result of his disability. If the complainant had been placed on day shift and was required, in the course of his duties, to go on or near trains then the complainant would either have carried out his duties and risked his own safety and consequently the safety of others, or he would have stopped himself from carrying out these duties and risked the safety of others. Both eventualities could have risked the respondent losing the contract when they had a medical assessment stating the complainant was unfit a hold a Personal Track Safety Certificate. I conclude that this risk would have placed a disproportionate burden on the respondent.
Victimisatory Dismissal
4.15 The complainant contends that he was dismissed because he asked for reasonable accommodation to be given after he was rostered to work the night shift in September 2010. Whilst the respondent contends they had no choice in terminating the complainant's contract when they had the medical assessment that he was not fit to hold a Personal Track Safety Certificate and they had no other available jobs. Section 74 (2) of the Employment Equality Acts states: "For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to --
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs."
4.16 The complainant contends that the proposed change to put him on the night shift was to make life difficult for him, because of the issues that had arisen between him and the respondent. Then he was further penalised when he raised objections about working the night shift because of his disability. He contends that the medical assessment was not proper or full. He did not have to be assessed for the Personal Track Safety Certificate and the doctor did not have a copy of his job specification. Also the respondent did not look properly at the alternative employment possibilities. He says that at all times he was fit to work the day shift.
4.17 The respondent denies that any victimisation took place. The complainant raised the issue of his inability to work the night shift because of his disability. They decided it was necessary for him to be medically assessed. Then he wrote to them and stated that he would hold Mr A personally responsible if he got injured or killed while working the night shift.
4.18 I have accepted, paragraph 4.10, that the respondent had no reason to question the complainant's capability to do his job until 2 September 2010. I also accept that given the sight problems the complainant enunciated to them that it was prudent for the respondent to have the complainant medically assessed for all types of work and not just limit their assessment as to his capability to work on the night shift. Furthermore, I conclude that the medical assessment was undertaken directly because of the respondent's concerns about the complainant's capability and was not decided on merely as a reaction to his refusal to work the night shift. The medical assessment said that the complainant was unfit to hold a Personal Track Safety Certificate. The complainant was told this at a meeting on 24 September 2010 and made aware of the difficulties the respondent was having in finding suitable employment. After further consultation the respondent by letter to the complainant dated 9 December 2010 told the complainant he was dismissed because he was unfit to hold the Certificate and there were no available jobs for which he did not need the Certificate. I conclude the complainant was dismissed because in accordance with section 16 (1) of the Acts he was no longer 'fully capable of undertaking the duties attached to that position'. Accordingly I find that the dismissal was not carried out in a victimisatory manner.
Harassment
4.19 The complainant contends he was harassed by the respondent, in accordance with section 14A (7) of the Acts, when they decided to change his working hours to the night shift as its purpose or effect was to create an intimidating or hostile environment. However, that claim is made on the basis that the respondent was aware of the complainant's disability and that working nights would cause him difficulty. As stated earlier I have concluded that whilst the respondent was aware of the complainant's disability it was not until 2 September 2010 that they became aware that the complainant considered it caused him difficulties in working at night. Therefore, the respondent's decision to put the complainant on night shift was made without knowing that it might affect the complainant's capability to carry out his job and, accordingly, could not amount to harassment.
5. DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
- the respondent did not discriminate against the complainant in the provision of reasonable accommodation,
- the complainant was not harassed, and
- the complainant was not dismissed in a victimisatory manner.
____________________
Hugh Lonsdale
Equality Officer
5 September 2013