DEC-E2014-022

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2014-022

PARTIES

An Employee

(Represented by Kiwana Ennis B.L. instructed by Durkan Solicitors)

AND

An Employer

(Represented by IBEC)

File reference: EE/2011/564

Date of issue: 9 April 2014

HEADNOTES: Employment Equality Acts - Sections 6, 8, & 7416 – Gender – Family Status - Disability – Conditions of Employment -Harassment – Victimisation - Provision of reasonable accommodation – time limits

1. DISPUTE

1.1. This dispute concerns a claim by An Employee that he was discriminated against by An Employer on the grounds of gender, family status and disability contrary to section 6 (2) of the Employment Equality Acts in relation to conditions of employment, 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 he was victimised contrary to section 74 (2) of the Acts.

1.2. The complainant referred claims to the Director of the Equality Tribunal on 29 July 2011 and 8 May 2012 under the Employment Equality Acts. On 18 November 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 on 16 January 2014.

2. COMPLAINANTS' SUBMISSION

2.1. The complainant started working for the respondent in 1992. In 2006 Mr A was appointed as his immediate supervisor and they had a good relationship initially. The complainant submits that Mr A’s unfair treatment of him started in 2008.

2.2. The complainant submits that in 2008 he got a phone call telling him that his daughter was in hospital. He told Mr A that he was going and Mr A asked where his partner was and when the complainant said she was in the hospital Mr A asked “why do you have to go” and the complainant was told to talk to the CEO.

2.3. The complainant submits he commenced Parental Leave in March 2009 and that Mr A’s unfair treatment of him increased after this. He was working a three day week, instead of the five day week he had worked previously, but little or no allowance was made for this by Mr A or the CEO regarding his workload. When he was not at work on Thursdays and Fridays his work was not allocated to others and had to be done by him before Monday’s work could be started. This resulted in him working extra hours.

2.4. The complainant submits that in 2010 he was given responsibility for a new computer system but there was no reduction in his workload to take account of this.

2.5. The complainant submits he regularly complained to Mr A about his workload but nothing was done. He was subjected to undermining behaviour, aggression, humiliation and intimidatory harassment by Mr A. He put pressure on the complainant to give up parental leave and he made negative remarks. He regularly called the complainant at home about orders.

2.6. On 16 August 2010 the complainant asked for leave on 18 October 2010 and he submits that Mr A responded by saying “Sure you get four days a week holidays as it is …….why don’t you just hand in your notice…”

2.7. Following a sales meeting in July or August 2010 Mr A told the complainant he would have to give up his parental leave as the sales team complained about not getting orders completed on Thursdays and Fridays. He felt under pressure to give up parental leave and then he did give up one day of parental leave.

2.8. On 21 September 2010 the complainant forgot to bring in his passport so that flights could be booked for him and Mr A shouted at him. The complainant apologised and said he would bring it in the next day but Mr A shouted again and criticised the complainant’s behaviour “after all the favours I do for you”. The complainant was not clear what favours Mr A was referring to but he suspected it was another reference to his parental leave.

2.9. On 21 October 2010 there was another incident when the complainant was asked to fly to England on 27 October and get an 8pm flight home. The complainant said he would be able to go but would have to get the 4pm flight home. Mr A told the complainant to sort it out with the CEO, whose view was that there were lots of people out of work who would travel as he had been requested.

2.10. Then on 25 November 2010 Mr A told the complainant that the CEO wanted him to go back to full time and his parental leave was over. When the complainant went to the CEO he said it would be fair enough if he could come back full time. The complainant told the CEO that he could not come back full time but he would be willing to complete orders at home if given a laptop or he could possibly come in on Saturdays. Both these offers were declined. The complainant felt he was being deliberately misled by Mr A.

2.11. Throughout 2009 and 2010 the complainant submits he complained about his workload to the CEO several times. He also complained about his treatment by Mr A. The CEO reminded him that his job was a full time job. At other times he was told just to do his best.

2.12. The complainant prepared a spreadsheet which compared his sales with those of the two others in his area and showed how many more sales he was doing in three days than they were doing in 5 days. He showed this to the CEO in September 2010. He was shocked by the results and asked Mr A to check them. The results were confirmed but nothing was done to address the complainant’s workload issues.

2.13. In January 2011 the complainant had dizzy spells which were witnessed by Mr A. He went to his GP who referred him to a Cardiologist who stated the dizzy spells were stress related. The complainant was on stress related sick leave from 12 January 2011 to 7 November 2011. This was a result of verbal abuse and insults from Mr A and the unfavourable treatment in relation to his workload. On 5 July 2011 the complainant met the CEO and asked what measures would be taken to alleviate his work situation and facilitate his return to work. He requested to be put in another section away from Mr A but was told that the respondent could not create a job for him. He was told he could take a grievance and was handed a copy of the respondent’s procedures.

2.14. The complainant phoned the CEO on 14 July 2011 and told him he had to make a complaint against Mr A. The CEO said this was the ‘nuclear option’ and if he did no concession or accommodation would be made available to him. That same day he sent a letter making a formal complaint of bullying and harassment against Mr A. An investigation was held by Ms B and Mr C but his complaint was not upheld. The complainant felt that his complaint was not fully investigated and he noted that Mr A’s statement included the comment that the team had to take up the slack and not the complainant when he took parental leave and that approving his parental leave showed great flexibility on their behalf.

2.15. The complainant appealed the decision on 7 November 2011 to the Company Secretary (Mr D) but this was not upheld either.

2.16. The complainant was seen by his doctor on 5 July, 12 August and 24 October 2011. On 7 November 2011 he returned to work and to his old position. He asked for 2 days per week parental leave but was only granted one. On 9 November 2011 he had a problem with Ms B about repayments of monies paid when he was on sick lave and he found her behaviour to be aggressive. The complainant said he was happy to pay back the money (€1,185.95) at the rate of €50 per month whilst Ms B was insisting that it was paid back in four instalments. Then on 10 November 2011 he had a meeting with the CEO, with Ms B present, and he was told that his equality claim (submitted on 29 July 2011) was making his reintegration to the workplace more difficult.

2.17. In January 2012 the CEO told the complainant about a job in the Stores Department. He was told the job was more suitable and could be more flexible to the hours he wanted; whereas the job in purchasing was full-time. He started in the Stores Department on 1 February 2012 as a four day week position, so he no longer takes parental leave and his salary is the same. The CEO told the complainant he understood this case with the Equality Tribunal would be withdrawn now the stores position had been offered. In a follow-up meeting with Ms B she also talked about him dropping the case.

2.18. The complainant submits that all through he was made to feel that the taking of parental leave by a male member of staff was unacceptable. He also claims that no reasonable accommodation for his disability was made for his return to work.

3. RESPONDENT’S SUBMISSION

3.1. The complainant started working for the respondent in 1993. In 2006 he was a Purchasing Administration Buyer and worked alongside Mr A. The respondent submits that they had a strong personal relationship outside of work for many years and there is evidence that this friendly relationship remained until early 2011. Previously the complainant had rented a room in Mr A’s house. Also, up to 2010, Mr A had loaned the complainant money. In June 2009 the complainant’s partner sent an email to Mr A about a concert which showed a friendship between the two. They also exchanged Christmas and birthday cards. There is also evidence that Mr A had a close relationship with the complainant’s mother. In late 2010 and early 2011 there are emails from the complainant to Mr A which are friendly and sharing jokes.

3.2. The respondent submits 12 females and 13 males have taken parental leave. The complainant applied for parental leave in January 2010 for 2 days per week from March to mid November 2010 (and not 2009 as stated in the complainant’s written submission) and this was approved by the CEO. In December 2010 the complainant applied for parental leave for another child, for one day per week and this was approved. No pressure was put on the complainant to give up parental leave. When he was asked to reduce from two days per week to one day the complainant agreed to do so.

3.3. The respondent submits the complainant did not work long hours. In the complainant’s Performance Appraisal for 2010 there was no mention of workload and the complainant was rated a strong performer. Also, the complainant had a minor role in the SAP system implementation. The complainant was contacted six times by Mr A while he was on parental leave but the complainant said it was OK and it was never presented as a problem by the complainant.

3.4. In the incident when the complainant’s daughter was taken to hospital Mr A asked if he could wait until lunchtime as they were busy.

3.5. The respondent submits that an annual leave request from the complainant was never refused by Mr A. On one occasion the complainant was told he would have to provide proof of a hospital appointment but there was no intimidation involved.

3.6. In relation to the complainant’s health issue in January 2011 the CEO told him to be careful when he was aware of the complainant’s initial symptoms at work.

3.7. The respondent submits that the complainant raised no issues with the CEO about Mr A until 20 July 2011 when he made allegations of bullying and harassment against him. The allegations were investigated by the Compliance Manager (Mr C) and were not upheld. An appeal was held by the Company Secretary (Mr D) and this was also not upheld.

3.8. On 1 July 2011 the complainant was seen by an occupational health doctor who said he was unfit to return and that the complainant could not envisage returning to work with Mr A as his line manger. In July 2011 when the complainant’s sick pay was due to expire the CEO met the complainant off-site to explain the permanent health insurance (PHI) to him and the respondent loaned the complainant €1,000 until a decision on his PHI application had been made by the insurer. Subsequently the insurer turned down his PHI application and the respondent asked for the money to be repaid.

3.9. The complainant was seen by a doctor on 12 August 2011 and was still deemed unfit to return to work, but the doctor found it difficult to explain the anxiety symptoms due to length of time the complainant had been out of work. He was seen again on 24 October 2011 and the complainant told the doctor he wanted to return to work.

3.10. The complainant returned to work on 7 November 2011 and met Ms B to discuss parental leave. At the meeting the complainant asked about the possibility of redundancy but was told there was no redundancy situation. In December 2011 the respondent advertised a stores job but nobody applied. The CEO and Ms B met the complainant and asked why he had not applied, given his previous experience. The complainant said he had no fork lift experience and was told that training would be given. He accepted the position on the basis of a four day week with an early finish on Thursday, at the same pay as his previous job, which was more than the advertised pay for the stores job.

3.11. The respondent submits that the spreadsheet figures compiled by the complainant are not valid as the other two working in the same area processed different type of orders.

3.12. The respondent submits they were not aware of any disability. The doctor’s certificate of 24 January 2011 does not refer to stress.

3.13. The respondent submits that no accommodation was requested by the complainant prior to him returning to work.

4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

4.1. I have to decide if the complainant was discriminated against in relation to conditions of employment and if he was harassed on the grounds of gender, family status, if the respondent failed to provide the complainant with reasonable accommodation in relation to his disability and if he was victimised. 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. The respondent contends that as the complainant’s first claim was registered on 29 July 2011 and therefore, in accordance with the time lines set out in the Employment Equality Acts, I can only consider events which took place after 30 January 2011.

Harassment

4.3. The complainant has made allegations of harassment against Mr A. He claims this had come about from his reaction to the complainant taking Parental Leave. The complainant went on sick leave on 12 January 2011 and referred to no further incidents regarding Mr A after that date. On occasions complainants have argued that they delayed submitting their claim under the Employment Equality Acts until the respondent has investigated their claim internally. However, in this case the complainant made a complaint against Mr A to the respondent on 14 July 2011. Just fifteen days before he submitted this claim on 29 July 2011. I therefore cannot consider that argument in this case. Therefore the last possible date of harassment is 12 January 2011 and this is more than six months before this claim was made and under section 77 (5) of the Employment Equality Acts I find the claim of harassment to be out of time.

Conditions of Employment

4.4. The initial complaint in relation to conditions of employment relates to the respondent’s reaction to him taking Parental Leave and the heavy workload he contends he was forced to undertake as a consequence of working fewer days whilst on parental leave. The complainant took parental leave from March to November 2010. In his written submission he added that when he returned to work in November 2011 he asked for parental leave for a second child, for two days per week and was only allowed one day per week. This was not in the original claim but in a decision of the High Court in County Louth Vocational Educational Committee v The Equality Tribunal, (Unreported, High Court, 24th July 2009, McGovern J). Judge McGovern stated:

"6.2 I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.

6.3 Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

4.5 It is clear from this judgement that in advancing a claim under the Acts a complainant is not limited solely to what is contained in the originating form. I do not consider that the new incidents go beyond "the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time". Also, I am happy that the respondent was able to respond, both by way of written submission and in oral evidence at the hearing to the new incidents. I therefore conclude that the claim in relation to conditions of employment falls within the time limit provisions of section 77 (5) of the Acts.

4.6 The complainant applied for parental leave for the first time in January 2010 and the respondent agreed to him taking parental leave on two days per week from March to November 2010. He reduced this at the request of the respondent in August 2010. Throughout this period he contends he had to do five days work in three and was criticised for not being at work on days the respondent had agreed for him to take parental leave. The respondent gave evidence at the hearing that they tried their best to redistribute the complainant’s workload on the two days he was on parental leave but that not all the work was picked up. It is also clear that Mr A was under pressure when questions were asked as a sales meeting about the complainant’s work not being covered on Thursdays and Fridays. The respondent accepts that they asked the complainant to reduce his parental leave because of the pressure of work.

4.7 Under the parental leave legislation parental leave may be taken as a continuous block of up to 14 weeks or, if the employer agrees, can be taken as “broken” leave over a specified and agreed period of time. The respondent agreed to the complainant taking “broken” leave of two days per week from March to November. However, they clearly did not make adequate arrangements for his work to be done on the two days he was on parental leave. It appears that some effort was made for one other person to help out but it is clear that his own work was his priority. Parental leave is not paid and the respondent would have had savings to allow for some measures to be taken for the complainant’s work to be covered on his days on parental leave. They chose not to make any such arrangements and had to ask the complainant to reduce his parental leave. It is, of course, an employer’s prerogative to ask an employee to change an existing work agreement. But, in this case, it was because of their failure to make adequate arrangements for the complainant’s work to get done on the days he was on parental leave.

4.8 Section 6(1) of the Employment Equality Acts, 1998 and 2004 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)…..”. In this claim the grounds are gender and family status. The complainant stated that he considered the respondent would not have treated a woman on parental leave in the same way.

4.9 The respondent stated that a total of 12 females and 13 males have applied for and been granted parental leave by them. They have never refused parental leave to any member of staff. They also confirmed that the majority taking “broken” parental leave were male. The complainant contends that, as far as he was aware, females have taken parental leave without any issues arising. No evidence was given by the respondent that anyone else had been requested to change or curtail their parental leave arrangements.

4.10 I conclude that the respondent did not make the appropriate arrangements for the complainant’s parental leave and this would not have occurred to a female taking parental leave and I find that this amounts to discriminatory treatment in relation to condition of employment on the grounds of gender.

Provision of Reasonable Accommodation

4.11 The complainant contends that he did not receive reasonable accommodation around his return to work. He states that his disability was work related stress arising from the issues with Mr A and the respondent did not adequately consider his situation and his request not to have to work with Mr A. The respondent contends that they were unaware that the complainant had a disability and that he did not request accommodation prior to his return to work.

4.12 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.”

4.13 Initially, therefore, I have to consider whether the complainant had a disability within the definitions given in section 2, and if he did when the respondent was aware of it. The first medical certificate submitted by the complainant dated 24 January 2011 states that the complainant is under cardiac investigation and would not be fit to return to work for one month. The complainant did not submit any further certificates so the respondent wrote to him on 19 April 2011 asking him to submit regular certificates, how he was and if he could attend a occupational health doctor on 21 April 2011. He went to that appointment and the Consultant Occupational Physician reported that “Clinical examination confirms some cardiovascular difficulties and an increasing anxiety level.” He went to his own doctor on 20 April 2011 who reported that the complainant “has ongoing hypertension which is aggravated by work stress.” He returned to the Consultant Occupational Physician on 12 August 2011 and the report states he complains of symptoms consistent with an anxiety state and had been attending counselling. He reports that the complainant “seems consumed with perceived work related issues” and “In my opinion (the complainant) continues to have some anxiety related symptoms ….. However, in my opinion he is not suffering from a depressive illness but rather an anxiety related condition of uncertain origin” His next visit to the Consultant Occupational Physician was on 24 October 2011 and the report states the complainant “is highly motivated to return to work. While he still has issues in the workplace, on balance he has made a decision that he needs to get back to work. To this end I think it would be appropriate for him to engage with the organisation as soon as possible to discuss a return to work. He feels medically fit for this process and in my opinion it would be in the interest of his general health and wellbeing to do so as a matter of some urgency.”

4.14 There is no evidence that the respondent engaged with the complainant before he returned to work on 7 November 2011 and there is no evidence that the complainant requested not to work with Mr A and no evidence of any incidents with Mr A after he returned to work. The respondent met the complainant on the first day he returned to work and his application for parental leave was discussed and he did not take this opportunity to discuss any other issues. The respondent would have had the last report of the Consultant Occupational Physician which was dated 28 October 2011 and Ms B gave evidence that the back to work interview she had with the complainant was “upbeat”.

4.15 In investigating the situation of the complainant’s return to work I also note that he was informed that he was not eligible for Permanent Health Insurance on 5 October 2011 and of the outcome of the investigation of his claim of bullying and harassment on 14 October 2011.

4.16 Taking all the evidence into account I do not consider that the respondent was aware that the complainant had a disability within the meaning of the Employment Equality Acts when he returned to work and were therefore under no obligation to consider whether the complainant needed any reasonable accommodation.

Victimisation

4.17 The complainant contends he suffered victimisation when he returned to work in November 2011. In particular, he cites interactions with Ms B and the CEO regarding the repayment of money and their comments about him withdrawing this claim, especially when he started the job in stores. The respondent contends the complainant treated the complainant fairly on his return to work and the move to the job in stores was their suggestion.

4.18 Victimisation is set out in section 74 (2) of the Employment Equality Acts:

“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 complaint of discrimination made by the employee to the employer or …. any proceedings by a complainant,”

4.19 The respondent and the complainant had a disagreement over the repayment of money which had been loaned to him in advance of an anticipated personal health insurance payment, which was subsequently not approved by the insurance company. The disagreement was about how the repayment was to be staged. The respondent wanted the money to be repaid in repaid in four monthly instalments whilst the complainant’s offer would have taken him two years to repay the money. He decided to borrow the money and repay it in one go. I do not consider that the complainant has provided evidence that links this disagreement to his claim of discrimination. The CEO was unavailable to give evidence at the hearing and in the absence of evidence to the contrary I accept the complainant’s evidence that the CEO asked him on two occasions if was going to withdraw his claim. For this to amount to victimisation there needs to be adverse treatment of the complainant. The complainant only gave evidence that the questions were asked. He gave no evidence that he suffered any adverse treatment.

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 discriminate against the complainant in relation to conditions of employment,
• the respondent did not discriminate against the complainant in the provision of reasonable accommodation, and
• the complainant was not victimised.

The claim in relation to harassment is out of time.

I order the respondent to pay the complainant €7,000 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.

____________________

Hugh Lonsdale

Equality Officer

9 April 2014