DEC-E2014-025

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC – E2014 – 025

PARTIES

A Worker

and

A Second-Level School (represented by IBEC)

File References: EE/2011/599

Date of Issue: 8th April 2014

Table of Contents

1. Claim.. 3

2. Summary of the Complainant’s Written Submission. 3

3. Summary of the Respondent’s Written Submission. 4

4. Conclusions of the Equality Officer 5

Preliminary issues. 5

Discrimination complaint 6

5. Decision. 9

Keywords: Jurisdiction – S. 101(4) – complaint under Unfair Dismissals Acts decided by Rights Commissioner – time limits – S. 77(5) of the Acts – disability – discriminatory treatment – lack of reasonable accommodation – harassment – victimisation.

1. Claim

1.1. The case concerns a claim by Mr A. that the second-level school who employed him discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2011, in terms of failure to provide reasonable accommodation, discriminatory dismissal, victimisation and victimisatory dismissal.

1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 18 August 2011. A submission was received from the complainant on 20 January 2012. A submission was received from the respondent on 12 April 2012. On 12 December 2013, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 14 January 2014. Additional evidence was requested from the complainant at the hearing of the complaint and received on 31 January 2014. The last piece of correspondence relating to the complaint was received on 18 March 2014.

2. Summary of the Complainant’s Written Submission

2.1. The complainant submits that his disability within the meaning of the Acts is back pain. He contends that he has been bullied and harassed by the respondent, without giving details of this, or how the alleged harassment relates to his disability. From his submission, it seems that his dispute with the respondent revolved around the emptying of a particular bin on the school grounds. A document contained in the complainant’s bundle of evidence specifies that the bin in question was a sawdust bin which complainant refused to empty because he considered that this was the Porter’s duty. Another document in the same bundle, a letter from the Chairman of the respondent Board of Governors dated 7 September 2011, in which the complainant’s appeal against his dismissal was rejected, specifies that when the respondent had learned of the complainant’s back problem, it purchased special lifting equipment for him, but that the complainant still refused to carry out the task. The letter also notes that the complainant regularly empties other bins on the school grounds.

2.2. The complainant accepts that his complaints of bullying and harassment were investigated by the respondent. He does not state as to when he informed the respondent of his disability, or what he requested from the respondent by way of reasonable accommodation, which he complains was denied. He does not give details of how he was victimised, or how his dismissal was discriminatory or victimisatory within the meaning of the Acts.

3. Summary of the Respondent’s Written Submission

3.1. The respondent is a secondary school. It employed the complainant from 2001 first as Groundsman, then from 2007 as Head Groundsman. It denies discriminating against, or victimising, the complainant as alleged or at all. It submits that the Tribunal has no jurisdiction to hear the complainant’s complaint of discriminatory or victimisatory dismissal, as the complainant brought parallel proceedings in respect of his dismissal under the Unfair Dismissals Acts 1977 to 2005, and these have been heard by a Rights Commissioner, and a decision relating to them has been issued. Accordingly the respondent argues that pursuant to S. 101(4) of the Acts, the Tribunal now lacks jurisdiction in the matter.

3.2. The respondent further submits that all events referred to in the complainant’s submission are outside of the six-month time limit, and that therefore the Tribunal does not have jurisdiction to investigate them. With regard to obtaining knowledge of the complainant’s disability, it submits that this was first brought to its attention in the context of a disciplinary meeting on 18 February 2011. Furthermore, the respondent disputes that the complainant’s back problem was a disability within the meaning of the Acts by the time it became aware of it, since its doctor, on examination, found no residual symptoms in the complainant and found him fit to perform his duties.

3.3. With regard to the complainant’s comparator, the respondent notes that under the Acts, the complainant cannot cite a comparator with the same disability that he himself has. Finally, the respondent submits that the complainant has not established a prima facie case with regard to the matters he complains of, in his submission.

4. Conclusions of the Equality Officer

Preliminary issues

4.1. The preliminary issues for decision in this case are whether the Tribunal has jurisdiction to hear the complainant’s complaint of discriminatory, or in the alternative, victimisatory, dismissal pursuant to the provisions of S. 101(4) of the Acts, and to determine which parts of the complainant’s case are in time pursuant to the provisions of S. 77(5) of the Acts.

4.2. In light of the fact that the complainant had his complaint unfair dismissal heard and decided by a Rights Commissioner pursuant to the Unfair Dismissals Acts 1977 to 2005, I find that pursuant to S. 101(4) of the Employment Equality Acts, I have no jurisdiction to investigate the complainant’s complaints of discriminatory and/or victimisatory dismissal.

4.3. In respect of time limits pursuant to S. 77(5) of the Acts applying to the case on hand, the complainant confirmed that the first time he mentioned that he had a disability to the respondent was on 18 February 2011. The complainant stated, and the respondent confirmed, that both parties had been aware that the complainant had a back problem. However, there was no dispute that this back problem did not cause the complainant to miss a lot of work, and in fact he was one of the employees with the best attendance records among the respondent’s non-teaching staff. There was also no dispute that the complainant and the Principal of the respondent school had been personally acquainted for many years, and that the issue of disability had not come up between them. Accordingly, I accept the Principal’s evidence that the first time he heard that the complainant regarded his back problem as a disability was on 18 February 2011. Given that the complainant referred his complaint on 18 August 2011, I find that I can only examine potentially discriminatory conduct on the part of the respondent that dates from 18 February 2011.

Discrimination complaint

4.4. The main issue for determination in this case is whether the respondent failed to provide the complainant with reasonable accommodation, and whether the complainant was harassed or victimised within the meaning of the Acts.

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

4.6. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.

4.7. The first question I must address is whether the complainant’s back problem is a disability within the meaning of the Acts, and whether he therefore has standing to maintain a complaint before the Tribunal. If the complainant’s back problem is a disability, it would be comprehended by the definition given in S. 2(c) of the Acts, where it says that “disability” means “the malfunction, malformation or disfigurement of a part of a person’s body”. It is settled law that medical conditions which are permanent, but flare up only episodically in a disabling way, such a multiple sclerosis, are disabilities within the meaning of the Acts. The main question is therefore whether the underlying condition causing the back pain, combined with the disablement experienced by the complainant, amounts to a disability.

4.8. According to the complainant’s evidence, he has a back injury, which sometimes flares up and gives him trouble. He stated that when his back problem flares up, it is instantly visible, in that he walks at an angle and can barely move. However, he stated that it “cures itself quickly with medication”. As noted already, there was no dispute between the parties as to his excellent attendance record at work.

4.9. Three different medical certificates were opened in evidence in relation to the complainant’s condition: One from the complainant’s GP and one from the doctor to whom he was sent by the respondent for an evaluation, and a radiology report from a major Dublin hospital.

4.10. The report from the complainant’s GP, dated 1 November 2011, states that the complainant’s back problem first occurred in November 2004. A subsequent x-ray of the lumbar spine on 9 February 2005 disclosed degenerative disc disease, with the disc space narrowing between the vertebrae L4 and L5. According to the GP’s report, the complainant experienced small flare-ups between 2005 and 2009, which settled with anti-inflammatories. In 2011, the GP noticed limited mobility of the spine in flexion and rotation. He notes that the pain settled again with prescription anti-inflammatory medication.

4.11. The report from the doctor who assessed the complainant on the request of the respondent is dated 11 March 2011. It notes that on examination, the complainant had full range of painless movement, and could flex his back to reach his toes with no obvious discomfort. The examining doctor could also find no evidence of tenderness over the complainant’s lumbo-sacral spine on deep palpation. The report also states that the doctor accepts that the complainant suffered a back injury prior to commencing employment with the respondent, even though he also notes that with regard to the lumbar disc lesion diagnosed by the complainant’s GP, no MRI scan has been carried out.

4.12. Dr. H. confirmed that the complainant was fit to carry out his duties as head grounds man, but recommended that the respondent arrange physiotherapy for him, provide manual handling training and provide assistance to the complainant for heavy lifts. He also recommends that an MRI scan be done on the complainant’s spine and that he be referred to a neurosurgeon in case his condition deteriorates.

4.13. The radiology report, which dates from July 2013, also confirms “significant degenerative changes identified at L4-5 level”. While this report dates from after the time when the complaint was made, I am willing to accept it as a confirmation of the two other reports, in that “significant degenerative changes” in someone’s musco-skeletal do not tend to occur suddenly.

4.14. On the basis that the complainant’s back injury is thus confirmed by two independent physicians and one radiology report, I accept that it amounts to a disability within the meaning of S. 2(c) of the Acts, and that the complainant therefore has legal standing to maintain a complaint. However, it seems worth noting again that the disabling effects of the complainant’s condition, during his employment with the respondent, were very small. I therefore accept the respondent’s evidence, as stated in paragraph 4.3, that it was not aware that the complainant’s back problem amounted to a disability within the meaning of the Acts until it was so notified by the complainant.

4.15. The complainant did not provide any evidence of harassment within the meaning of the Acts, that is, unwanted conduct related to his disability, which had the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him, pursuant to the provisions of S. 14A(7) of the Acts. The complainant stated that he felt bullied by his supervisor, but allegations of bullying are outside of the Tribunal’s statutory remit. The complainant’s complaint of harassment must fail based on the basis of the lack of evidence mentioned above.

4.16. In terms of his complaint of lack of reasonable accommodation, the complainant clarified in evidence that he was not disputing that he was able to carry out the tasks that were demanded of him. He repeated this statement several times and was keen to make the Tribunal understand his exact position. He clarified that his perception of being discriminated against stemmed from the fact that a named colleague with back pain was not asked to do these tasks. He therefore felt that the same criteria should have been applied to him.

4.17. On the basis of the complainant’s clear insistence in his repeated explanations as outlined in the preceding paragraph, I am treating his complaint of lack of reasonable accommodation as withdrawn.

4.18. What aggrieved the complainant seems to have been a question of perceived unfairness rather than discrimination. In the case on hand, the named colleague was also suffering from back pain. This was accepted by both parties. The specific organic cause of that man’s back pain was not disclosed in evidence. The respondent’s Administrator, Mr M., said in evidence that the named worker was excused from doing the task in question because his back pain was serious and ongoing and he was under the constant care of a pain specialist, a fact of which the respondent was aware. This was not disputed by the complainant, and therefore I am satisfied that the named worker was much more severely affected by his back pain than the complainant was. The employer’s duty of reasonable accommodation as set out in S. 16 supports the approach which the respondent took, that is, of relieving the more severely disabled worker of a duty which the less severely disabled complainant, by his own evidence, was still able to carry out. To make reasonable accommodation pursuant to the obligations set out in S. 16 available to one worker is not discriminatory against a worker who, by his own evidence, does not need it. The complainant’s complaint of discrimination must therefore fail.

4.19. The complainant presented no evidence of victimisation within the meaning of the Acts, so his complaint of victimisation must also fail.

5. Decision

5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the named secondary school did not discriminate against Mr A. on the ground of his disability pursuant to S. 6(2)(g) of the Acts, and did not victimise him contrary to the provisions of S. 74(2) of the Acts.

______________________

Stephen Bonnlander

Equality Officer

8 April 2014

DEC-E2014-025