DEC-E2014-060

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC – E2014- 060

PARTIES

A Complainant

(represented John Gerard Cullen Solicitors)

-v-

A Local Authority

(Represented by LGMA)

File Reference: EE/2009/673

Date of Issue: 14th August 2014

Keywords

Employment Equality Acts 1998-2011, Section 77(5) - statutory time limits, Section 6(1) - less favourable treatment, Section 6(2)(f) & (g) – Age and Disability, Section 8 discrimination in relation to conditions of employment, Section 14A- Harassment, Section 74(2) - Victimisation, Section 2 “dismissal” Constructive discriminatory dismissal, Section 85A- burden of proof, no prima facie case.

1. Dispute

This dispute involves a claim by the above named complainant that he was discriminated against by the above named respondent on the age and disability grounds, in terms of Section 6 of the Employment Equality Acts and pursuant to section 8 of that Act in relation to his conditions of employment and dismissal. He is also alleging that he was harassed contrary to section 14A and victimised in terms of section 74(2).

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 10th September 2009 alleging that the respondent discriminated against him contrary to the Acts.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on the 3rd July, 2012 to me, Marian Duffy, 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 the complainant 16th February 2010 and from the respondent on the 31st May 2010 S. A hearing on the complaint was held on the 9th and 10 April 2013, 26th June, 25th July 2013 and 21st July 2014.

3. SUMMARY OF THE COMPLAINANT'S CASE

3.1 The complainant was employed by the respondent in January 1970 and his employment terminated in May 2009. He commenced employment as an apprentice technician and qualified as a technician in engineering and after further study received a diploma in engineering. In 2005 he received a Batchelor of Engineering Degree. He was promoted through the grades of technician and became a Senior Executive Technician in August 2001. He worked in the road design section and his office was located in the Council HQ up until 1998. In or around 1996 a new head of department was appointed and he states that from this time onwards his conditions of employment deteriorated. He said that he was isolated excluded and bullied and harassed by the new manager. In 1998 he was transferred by the County Engineer from the job he did designing roads to the geo technical laboratory supposedly to head up a new venture for the Council. He said that the new location was in an isolated area away from Sligo town and his office was a portakabin and the laboratory was in a run down concrete building. He said that he had to train himself into the job as he had never done this type of work before. He was supposed to test road material but nobody was interested in the outcomes.

3.2 He referred a complaint under the Grievance Procedures to the Local Authority in relation to bullying in 2000. The matter was investigated and his complaint about bullying against his supervisor in the road design department in relation to his removal from the department to a new role was upheld. Following an appeal to the County Manager the decision was eventually overturned in 2005. There was a counter claim of bullying made against him by his supervisor in the road design department and this was not upheld. In 2003 he took some study leave and on his return he was transferred to Health and Safety. His new office was again in a portakabin in the Council’s yard. He said that he was not trained in health and safety and again he was given very little work to do. After completing his Engineering Degree in 2005, he needed some experience so that he could work as an engineer. He said that he applied for a number of jobs which would have given him graduate engineering experience but he was deemed not qualified. He said that he complained about the quality of the work he was doing on several occasions. He said that as a result of the way he had been treated since 1999 his health deteriorated. In early 2007 he went on sick leave due to stress which he states was caused by his work situation and his isolation in a portokabin.

3.3 The complainant returned to work after this period of sick leave in November 2007. On the 3rd of April 2007 and while he was on sick leave he wrote to his manager and the Director of Services Mr. A complaining that he had no adequate work to do. In that letter he stated that:

“He had been physically ‘cut off’ in an unsuitable portakabin since January 1999 he has been vocationally and socially isolated from work colleagues. He has been made redundant in the eyes of other employees by being given no adequate or consistent work to do He has been made to feel completely intimidated by the continuous isolation and non-provision of adequate work deprived of promotion prospects through being de-skilled and isolated.”

3.4 The complainant also submitted that in 2005 after he had qualified as an Engineer he applied for the position of Chief Technician and he was not placed on the panel. He was deemed not qualified. The complainant submits that this was discriminatory treatment on the age ground as the four successful applicants placed on the panel were much younger than him. He applied for the position of Assistant Engineer in February 2006 and again he was unsuccessful and all the candidates placed on the panel were much younger than him. In March 2006 he applied for the position of Assistant Engineer and he was placed 10th on the panel. He believes he was discriminated against on the age ground as all the other candidates ahead of him on the panel were younger than him. He applied for the position of Acting Executive Engineer in the road design area in November 2008 and he was not placed on the panel as he was deemed not to be qualified. He said that the people placed on the panel were much younger than him.

3.5 He said that he received a reply from Mr. A dated the 26th of April 2007 rejecting the contents of his letter. The complainant said that he was not satisfied with the response and he sent a further letter to him. He was then contacted by the Staff Welfare Officer and he met her in August 2007. He related to her his treatment by the Council and his transfer to the laboratory and then to health and safety. He pointed out to her that he was on sick leave due to work related stress and that he did not wish to return to work in the Health and Safety department. He requested to work in the road design department and he was told that was not an option. He also raised with her an issue where he believed that he was accused by his supervisor in the road design department of producing a faulty road design which he said was a fabrication and he asked her to sort out this issue.

3.6 The complainant then had a meeting with Mr. B, A/Senior Executive Officer in HR and he again made a request for a transfer from the health and safety section and to get experience as an Engineer. On the 19th of September Mr. B wrote to him informing him of a transfer to the Land Asset Management area which is under the Directorate of Planning. The complainant said that after speaking to the Director of Services he accepted the position on the understanding that he would get relevant work experience at assistant engineering level. He returned to work from his sick leave absence on 5th November 2007, and he agreed to continue to work from the portakabin which was located in the Council yard while the other staff in the area was located in the Harbour Office some distance away. The complainant said that while he did get some job satisfaction in his new position he was still not getting engineering experience. He again sought a transfer back to the road design department. The complainant said that he got on well with the staff in Land Asset Management and he was treated with respect.

3.7 The position of Acting Assistant Engineer was advertised in November 2007 and he applied. He said that he was placed second on the panel and the first placed who was a lot younger than him did not take up the job. The position was offered to him and he accepted. He was appointed on the 8th of February as an Acting Assistant Engineer in the Land Asset Management area for the period 8th of February 2008 until the 7th of February 2009. After he was appointed he said that job did not change from the one he did in Land Asset Management since November 2007. He said that the work was not engineering work and was the equivalent of what he did when he was training as a technician. He said that there was no other engineer in the Council doing the equivalent job to him. He said that the engineers were working in the water services, sewerage, housing and roads areas. In March 2008 he wrote to the Staff Welfare Officer requesting a transfer to another section and indicated he would prefer to go to the road design department so that he could get adequate professional engineering experience. He said that he got no response to this request.

3.8 In July 2008 a workstation assessment was carried out by health and safety and a number of deficiencies were identified and as a result he said that he got a new office chair. In or around September 2008 he suffered a neck pain and was out of work as a result. He believed the neck pain arose from working on the computer. He returned to work in October 2008. He informed the company that he was attending a psychiatrist. In December 2008 he said that he wrote to HR following a conversation with his supervisor seeking a transfer to technical sections in the Council so that he could get experience. He said that he got no satisfactory response to any of the issues he raised.

3.9 On the 19th of January 2009 the complainant went out sick as he was suffering work related stress and depression. HR requested the complainant to attend an occupational health consultant. The complainant attended as requested and a report was sent to HR. At that time he determined that the complainant was medically unfit for work. The Consultant told the complainant that he was submitting a report to the Council based on the information he (the complainant) had provided regarding all the issues he had raised in relation to his conditions of employment. The Consultant said that he was requesting a reply from HR and then he would review the complainant in four weeks. The complainant said that he attended OH again on the 25th of March 2009. The complainant said that there was no proper investigation of the issues raised by the Consultant OH in the first report. He said that he was shown a report by the Consultant from the Staff Welfare Officer which he had not seen and in which was stated that he had declined to consider early retirement. He said that he disagreed with this report from the Staff Welfare Officer and up until this visit to the OH he had never considered early retirement. He said that his own doctor had advised him that it was time to leave the job. He said that OH then raised the issue of early retirement with him and he felt he had no option but to say that he was interested in discussing it as an option because he believed that the respondent was not interested in investigating the matters raised by him about his working conditions. Following this the complainant said that he was contacted by HR and arrangements were put in place for his retirement and he retired on the 15th May 2009. On the 11th of May 2009 he wrote to the respondent stating that he had decided to apply for retirement due to ill health. The complainant accepted that his own Consultant confirmed that he was permanently unfit for work on medical grounds.

3.10 The complainants GP gave evidence that the complainant was suffering from stress which related to his working conditions and he diagnosed him with depression in 1999 and he was prescribed anti depressants and in 2000 he referred him to cognitive behaviour therapy. In September 2007 he referred him to a Consultant Psychiatrist. He felt that the depression he was suffering was connected to his work situation.

4. SUMMARY OF THE RESPONDENT'S CASE

4.1 The respondent denies that the complainant was discriminated against on the disability and age grounds. It was submitted that the complaints were referred outside the statutory six month time limit for referring a complaint. All the alleged incident of discriminatory treatment relied took place outside this period.

4.2 Ms A, Staff Welfare Officer, said that the complainant was referred to her service by HR in 2007. He had been on sick leave from May 2007 citing stress as well as an injury. She spoke to him on the telephone and he was annoyed as he did not believe he needed her assistance. He said that he had already received counselling. She met with him on the 2nd of August 2008. The complainant was aggrieved about his situation and he felt that his job in health and safety did not allow him to develop his professional qualifications properly. He also was very upset about the outcome of the bullying and harassment case and he believed that his previous boss in the road design had undermined him professionally in relation to criticism of his work on one project and he wanted this matter investigated. He told her he was on antidepressants and he indicated that he began suffering from depression in the recent past.

4.3 Following that meeting Ms A said she did a report and made a number of recommendations and met the Director of Services for HR and Mr. B, Senior Executive Officer in HR. She made a recommendation that the complainant be transferred from health and safety. A decision was taken that the complainant would be transferred to the Land Asset Management with a view to providing him with experience at assistant engineering level and this was confirmed to him in writing. The complainant returned from sick leave to his new position in November 2007. In March 2008 the complainant was in touch with her about issues in relation to the bullying and harassment complaint. She said that her understanding was that he had signed off on this complaint in 2005 and it was not possible to reopen it but the complainant continued to raise issues about it. The complainant was out sick in 2008 with an injury which he said related to working on the computer. He was referred to a medical referee in September 2008. The Council received a doctors report in which was stated that he was fit to resume duties on the computer on his return to work but that he also suffered from other illnesses including depression.

4.4 A meeting was held with the complainant on the 4th of November and he was given a copy of the doctor’s report. Ms A said that she prepared a report based on the medical referee’s report for Mr. B. She said that it was her job to discuss all options with a person referred to the Staff Welfare Service and she agrees that she discussed early retirement with the complainant but he was not interested and she put no pressure on him to consider retirement.

4.5 Ms C, who was Senior Executive Officer with responsibility for the Harbour and Land Asset Management in 2008, said that she needed an engineer in her department. She said that she took up this job in 2006. It was a new area designed to centrally manage land and leases belonging to the Council. The complainant was assigned to her area. There was no suitable accommodation for him in the Harbour building and she offered to have the portakabin moved to an area adjacent to this building, but the complainant said that he would stay in the Council yard. She said that she never got any complaints from the complainant. She said that she went up to visit him in the portakabin and they discussed work and he also came down to the harbour office. He worked as an assistant engineer and the duties she gave him was engineering work. She said that she is an engineer herself and she is certain the duties were engineering duties. One of his duties was designing and laying out a car park and another was designing new offices in the Harbour area. She said that the complainant carried out the work very well and he was very accurate and reliable and she was very happy with him. She said that it was never brought to her attention that the complainant had depression or that he was unhappy about his work.

4.6 Mr. B, SEO in HR, said that it was brought to his attention in March 2007, in a memo from his line manager that the complainant was out sick suffering from occupational stress. He referred the matter to the Staff Welfare Officer. He also telephoned the complainant to arrange a meeting with him. He met with him on the 4th of April 2007. The complainant told Mr B that he felt that he was not suited to the Health and Safety area as he had no qualifications or experience for the role. He had been there for over 3 years and had not been given substantive work to do and this had caused him stress. He said that he had qualified as an engineer in 2005 and he had been told by the Council that he would be appointed as a graduate engineer but this did not happen. Following the meeting, Mr. B said that he brought the complaint to the attention of management and to the County Manager and management set about finding a long term solution to address the issues raised. A position was identified in the Land Asset Management area for an assistant engineer and Mr B wrote to the complainant advising him of it and of the Council’s intention to provide him with engineering experience. The Director of Services for the area had a meeting with the complainant and he went through the details of the job. The complainant returned from sick leave on the 5th of November 2007 and he took up duty in his new post. The position of acting assistant engineer was advertised and the complainant applied and was successful and he was appointed on the 7th of February 2008.

4.7 Mr. B said that he was made aware by the Staff Welfare Officer that the complainant was seeking a transfer. He said that he discussed the matter with the complainant’s Director of Services and it was agreed that they would meet him. Before the meeting took place the complainant went on sick leave in August 2008. The complainant was referred to the Council doctor. The doctor recommended that the complainant could return to work on reduced hours. Mr B said he called the complainant to a meeting to show the doctor’s report and to arrange his return to work. It was agreed that he could return on reduced hours which he did. The complainant went on holidays on the 12th of December 2008 and was due back at work on the 19th of January 2009, but he reported sick with work related stress and sent in a medical certificate. Mr. B said that he requested a report from the Staff Welfare Officer and he decided to refer the complainant to an Occupational Health Consultant and he enclosed that report and the above mentioned report from the Council doctor.

4.8 In a report the OH deemed the complainant medically unfit for work and he requested a response from the Council to the issues the complainant raised with him in relation to his working conditions. Mr B said that he issued a response dated 18th of March 2009 detailing the response of the Council in relation to all the matters raised by the complainant. The OH Consultant requested to see the complainant four weeks after his initial examination and this examination took place on the 25th of March 2009. In his report to the Council, the OH Consultant stated that the complainant was currently medically unfit for work, and he also mentioned that he was amenable to considering early retirement options. The respondent then received a report dated the 5th of May 2009 from the complainant’s own Consultant saying that he was permanently unfit for work on medical grounds. Mr B. said that the complainant then wrote to him on the 11th of May 2009 saying that there were no options open to him other than to retire. Mr B said that he telephoned the complainant and asked him for clarification on the letter. He said that he wanted to be sure that the complainant wanted to retire on ill health grounds. The complainant said that he would consider his position and revert back. On the 19th of May Mr. B said that he received a letter from the complainant confirming his intention to retire on medical grounds. Mr. B said that he was satisfied that the complainant wished to retire and he put the necessary procedures in place to facilitate this request.

5. CONCLUSIONS OF THE EQUALITY OFFICER

Preliminary Jurisdictional Issue - Statutory Time Limits

5.1 The first matter I have to consider is whether the complaints were referred within the statutory time limits. Section 77(5) of the Acts provides as follows:

“(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.

Section 77(6A) of the Acts provides as follows:

“(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the

end of the period,

(ii) if it arises by virtue of a term in a contract, throughout

the duration of the contract, and

(iii) if it arises by virtue of a provision which operates over

a period, throughout the period,

(b) a deliberate omission by a person to do something occurs

when the person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to

decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might

reasonably have been expected to do it.”

5.2 The effect of these provisions is that the complainant can only seek redress in respect of an occurrence of alleged discriminatory during the six-month period prior to the date on which the claim was received by the Tribunal unless the acts relied on constitute a chain of ongoing discriminatory treatment and the last alleged incident is within the six month period. I am now considering whether there was ongoing discrimination and whether all of the incidents complained about extend over a period of time.

5.3 The complainant submitted a complaint of discriminatory treatment on the age and disability ground in relation to his conditions on the 10th of September 2009. The complainant’s employment terminated on the 15th of May 2009 and he is claiming that he was forced to retire because of his disability. It was submitted this act of alleged discriminatory treatment is within the time limit

The respondent’s representative submitted that the entire claim is out of time. She further submitted that the complainant must show that an act of discrimination occurred within the 6 month period prior to the referral of the case and referred me to the Labour Court decision in the case of Cork VEC and Hurley EDA1124. and said that the complainant had provided no evidence to establish that any of his complaints were within the 6 month time limit.

5.4 In considering the issue of whether the matters complained about constitute a chain of linked events or if all of the instances are separate events, I have taken into consideration the Labour Court reasoning in the case of County Louth VEC –v- Don Johnson EDA0712 which considered if separate acts of discrimination were linked. The Court stated:

“Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.

In Department of Health and Children v Gillen EDA0412 the Court considered an application to include a claim of discrimination, which occurred outside the time limit, the Court found:

“The first of these relates to whether the complaint in relation to the interview held on the 22nd of November, 1999, was in time. Section 77(5) of the Employment Equality Act states that

“a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of six months from the date of the occurrence, or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".

The complainant’s complaint is that after he had reached the age of fifty he was no longer considered by the appellant as being suitable for promotion purely on age grounds. On each occasion he competed, he was rejected by the appellant on the grounds that he was over fifty years of age. The Department submits that if the complainant is correct (which it does not accept) then he was subjected to two separate and distinct acts of discrimination, in two separate and distinct competitions by two separate bodies.

In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground”.

5.5 The complainant referred a complaint on the disability and age ground on the 10th of September 2009. In relation to the age discrimination claim, I note that the complainant is complaining that he was not given an opportunity to get engineering experience after qualifying as an engineer in 2005. He believes this occurred because of his age. I note that the complainant applied for a number of positions in the engineering area; the last application was in November 2008 and he was unsuccessful. He believes he was unsuccessful because of his age as the successful applicants were much younger than him. However the complainant was successful for an acting engineering post in February 2008 in the Land Asset Management. He submits that he was discriminated against on the age ground in relation to this competition also, because he was placed second on the panel and the person at number one was much younger than him. Even if the complainant could establish that these competitions formed a chain or continuum of alleged discrimination, I am satisfied that any discriminatory issues in relation to these competitions were referred outside the statutory time limit. The last competition in which the complainant was unsuccessful took place on the 21st of November 2008, therefore any referral in relation to this competition would have to have been received by the Tribunal on the 20th of May 2009. I note that the complainant has not claimed any discrimination on the age ground in relation to the termination of his employment. For the above reasons, I find the age discrimination claim was referred outside the statutory time limit claim and is statute barred.

5.6 The next matter I have to consider is whether the disability claim has been referred within the statutory time limit. I note that the complainant’s employment terminated on the 15th of May 2009 and he is claiming that his dismissal was discriminatory. He alleges that he was discriminated against on the disability ground in relation to his conditions of employment harassed and victimised and the respondent failed to deal with his complaints. He submits as a result of the treatment he suffered from a disability and then the employer forced out of his employment because of his illness and he was given no option but to retire on medical grounds. I note the complainant is disputing events around the termination of employment which he says are discriminatory. The complainant employment ended on the 15th of May and his complaint was referred on the 10th of September 2009 which is within 6 months of the last incident i.e. the termination of his employment. I find therefore that the complaints on the disability ground constitute ongoing discrimination and were referred within the six month time limits provided for in section 77(5)(a) of the Acts and that I have jurisdiction in the matter.

The Substantive Equality Claim – Disability Ground

5.7 In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.

The respondent submitted that the complainant had failed to establish a prima facie case of discriminatory treatment and referred me to the Labour Court jurisprudence in the case of Southern Health Board v Mitchell ELR 201 and Cork City Council v McCarthy EDA0821 with regards to the burden of proof.

5.8 Section 8 of the Act contains the general prohibition of discrimination. Section 8(1) provides:

“In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."

5.9 It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that he was discriminated against on the race ground in relation to his conditions of employment. It is only when he has discharged this burden to the satisfaction of the Equality Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.

The Labour Court in the McCarthy case applying the principles set out in Mitchell stated:

“Section 85A of the Act, as amended, now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be inferred it shall be for the Respondent to prove the absence of discrimination.

The test for applying that provision is well settled in a line of decisions of this Court starting with the Determination in Mitchell v Southern Health Board [2001] ELR 201. That test requires the Complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which he bears, his case cannot succeed.

The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated:

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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."

5.10 I am satisfied from the medical evidence that the complainant has a disability within the meaning of the Act as he was diagnosed with work related stress, anxiety and depression and was in receipt of medical treatment. The next matter I have to decide is when the respondent became aware of the complainant’s disability. The respondent witnesses stated that they only became aware the complainant was suffering from depression in 2008, when they received a report from their Occupational Consultant. I note that Mr B from HR said that he was made aware the complainant was out sick suffering from occupational stress in March 2007 and he met with him on the 4th of April 2007. I note that the medical certificates stated that the complainant was suffering from amongst other matters stress, and then in August 2007 the medical certificated indicated that the complainant was suffering from work related stress. I also note that when the complainant met with the Staff Welfare Officer in August 2007 he told her he was on medication for depression. Likewise I note the respondent was not officially notified that the complainant was attending a psychiatrist until they received a report from their own OH Consultant in 2008, however I am satisfied that the respondent was aware that the complainant’s absence from work was due to a disability as they were aware he was on treatment for depression from about April 2007 onwards.

5.11 I will now examine the evidence from that period onwards. The complainant is complaining about his conditions of employment that that the work he was given was not adequate or suitable and furthermore he had very little work and he was isolated in a portakabin. I note that the respondent made every effort to accommodate the complainant with suitable work once they became aware of his grievances. I further note he was working in health and safety since 2003 and during his sick leave absence in April 2007 he raised with the Director of Services a number of grievances he had about the job including isolation in a portakabin which he believes was one of the causes of his disability. Correspondence passed between the parties and the matter was brought to the attention of HR. I note the respondent took immediate steps to accommodate the complainant in a position commensurate with his experience and his recent qualifications as an engineer and to accommodate his return to work after a lengthy period of sick leave. On the complainant’s return to work in November 2007, he was transferred to the Land Asset Management area and a competition was organised for an acting engineering post in that area. The complainant was appointed to the post. The complainant evidence is that the work he was asked to do was not engineering work.

5.12 It is not my duty to determine whether the work was engineering work or not. However I accept the evidence of Ms C, who was the complainant’s supervisor and an engineer herself, that the work was engineering work. I am satisfied that the complainant has not provided any evidence to establish that he was treated less favourably on the disability ground than another person, with a different disability or a person without a disability, was treated or would have been treated in similar circumstances. I find therefore the complainant has failed to establish a prima facie case in relation to this aspect of his complaint.

5.13 In relation to the complaint about working in the portakabin, I note the complainant’s office accommodation was a portakabin since 1999. I accept that the complainant was the only employee of the Council to have his office in a portakabin for such a long period of time and while it was not appropriate accommodation given that he was isolated from other Council staff, I can find no link between the disability ground and the treatment as the complainant was in the portakabin before he began suffering from a disability and before the respondent knew of his disability. I note that, on the complainant’s transfer to Land Asset Management, Ms. C offered to move the portakabin to an area adjacent to the harbour office as there was no office room in the harbour building and the complainant did not accept the offer. She said that one of the engineering tasks she gave to the complainant was to draw up plans and apply for planning permission for offices in the harbour building. For these reasons, I am satisfied therefore that the complainant has failed to establish discriminatory treatment on the disability ground in relation to his conditions of employment.

Reasonable Accommodation

5.14 It was unclear from the referral whether the complainant was claiming that the respondent failed to provide him with appropriate measures under Section 16.Lest there be any doubt about this aspect of the complaint, I have examined the claim under Section 16.

Section 16 of the Acts provides:

"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.

…………….

(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 herself or

herself;"

5.15 I note that when the complainant was on sick leave during 2007, the respondent responded to his complaints about his working conditions, and he was transferred from health and safety because of his complaints about the work and the fact that he was out sick suffering from occupational stress. I note that the complainant was out sick in 2008 with neck and shoulder pain and his GP requested a return to work on reduced hours. This was granted by the respondent and the complainant worked a number of weeks on shorter hours.
I am satisfied therefore that the respondent provided appropriate measures to the complainant in accordance with Section 16.

Dismissal

5.16 The next matter I have to consider is whether the complainant was dismissed because of his disability as he claims that the termination of his employment was discriminatory. The complainant said that following attendance at OH and the failure of the respondent to carry out an investigation into the matters in relation to his conditions of employment he was forced to retire on ill health grounds.

Section 2 of the Act defines dismissal as follows:

‘‘dismissal’’ includes the termination of a contract of employment by

the employee (whether prior notice of termination was or was not

given to the employer) in circumstances in which, because of the

conduct of the employer, the employee was or would have been

entitled to terminate the contract without giving such notice, or it

was or would have been reasonable for the employee to do so, and

‘‘dismissed’’ shall be construed accordingly;

5.17 It is clear from the evidence that the complainant resigned so I will consider the matter as a claim for discriminatory constructive dismissal. I note that the complainant was dissatisfied with the work he was given in both health and safety and subsequently in the Land Asset Management. Likewise I note that he continued to be dissatisfied with the quality of work he was given as a graduate engineer and he requested on a number of occasions a transfer back to the road design department where he had worked previously. It is clear that this was not an option for the respondent given the history of the previous complaints about bullying. The investigation of this complaint was completed in 2005 and the outcome was accepted by the complainant but it seems clear to me that the complainant sought to reopen the issues about it with HR from 2007 onwards. As I have noted above, once the respondent became aware of the complainant’s dissatisfaction with his conditions of employment in 2007, he was transferred and accommodated with work suitable for a graduate engineer. The decision not to accommodate a transfer to the road design department and to reopen a concluded investigation cannot constitute conduct by the respondent which would entitle the complainant to resign and claim constructive dismissal.

5.18 I note that the complainant was on sick leave and he was referred to an OH Consultant. Following the consultation a number of issues were raised with the respondent about the complainant’s working conditions. Mr. B responded and following this, the complainant was seen by the OH Consultant and he was shown a copy of the response and also a copy of a report from the Staff Welfare Officer. He said that when he saw these reports he believed that the respondent had no intention of resolving the issues he raised concerning his working conditions and had no intention of giving him proper engineering work. He said that he felt that he had no option but to retire on ill health grounds. The respondent states that there was no pressure put on the complainant to retire and that he could have continued in his job

5.19 I note that the OH consultant said in his report that the complainant was “amenable to considering early retirement” and following receipt of this report the Staff Welfare Officer wrote to the complainant seeking a meeting with him and HR to discuss the matter. HR then received a report from the complainant’s medical consultant stating that the complainant was permanently unfit for work on medical grounds. I note that the complainant wrote to Mr B indicating that the only option open to him was to retire on medical grounds. Likewise I note that Mr. B telephoned the complainant on the 15th of May 2009 seeking clarification of his letter and giving him an opportunity to consider the matter and refer back to him. In a letter of the 15th of May the complainant requested to retire immediately on the grounds of ill health. I am satisfied that the complainant retired of his own volition. It is very clear from the evidence that Mr. B carefully checked with the complainant and satisfied himself that he wished to retire before putting the arrangements in place. There is no evidence whatsoever that the complainant was constructively dismissed for discriminatory reasons. I find therefore that the complainant has failed to establish a prima facie case of constructive dismissal.

Victimisation

5.20 The complainant also claims that he was victimised following the taking of a bullying case against a named employee of the respondent under the grievance procedures. Section 74(2) of the Act provides:

“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.”

5.21 The complainant submits that he was transferred from the roads design section to position in the laboratory, given very little meaningful work, his office accommodation was a portakabin and he was isolated from other staff of the Council. He was then transferred to Health and Safety which again was unsuitable work and he had very little to do and again his office was a porta cabin isolated from other staff. I note that the bullying complaint was made in 2000 and the outcome was in 2005. The complainant transfer out of the road design department to the laboratory and to offices in a portakabin took place in 1998 and before the referral of the complaint of bullying and harassment and therefore any complaint about the transfer could not be victimisation. Secondly that complaint was not one of discriminatory treatment linked to a ground under the Act so the complainant cannot establish victimisation in relation to his conditions of employment or dismissal. Thirdly any complaint about victimisation in relation to that transfer is completely outside the statutory time limit. I have also examined the evidence in relation to the termination of the employment in relation to victimisation. I am satisfied that there was no evidence whatsoever presented to establish that the complainant had complained to the respondent about discriminatory treatment on the disability ground and that the treatment of him in relation to the termination of his employment was connected to that complaint. I find that the complainant has failed to establish treatment which would constitute victimisation in terms of Section 74(2) of the Act.

Harassment

5.22 The complainant has also claimed that he was harassed.

Harassment is defined under section 14A as: “being conduct which in either case has the purpose or

effect of violating a person’s dignity and creating an intimidating,

hostile, degrading, humiliating or offensive

environment for the person.

(b) Without prejudice to the generality of paragraph (a), such

unwanted conduct may consist of acts, requests, spoken

words, gestures or the production, display or circulation

of written words, pictures or other material”.

It seems to me that the complainant is complaining about the bullying/harassment complaint as outlined above which occurred when he was in the roads department and about which he made a complaint to management under the grievance procedures in 2000. This was the subject of an investigation and a report. The matter was finally disposed of in 2005 and the complainant accepted the outcome. The complainant cannot reopen this investigation as the matter was dealt with and finalised and the outcome accepted by the complainant. Even if this complaint could be reopened there is no link between the complainant’s disability and the alleged harassment and bullying. In any event the complaint was referred outside the statutory 6 month timeframe for referring a complaint.

5.23 Furthermore there was no evidence presented that any acts of harassment took place following the respondent becoming aware in 2007 that the complainant had a disability. I note that the complainant went on holidays on the 12th of December 2008 and then on sick leave and did not return to work prior to retiring on the 15th of May 2009. The complaint was referred on the 10th of September 2009. There was no evidence presented by the complainant that any harassment took place during the period of time leading up to his retirement. I find therefore that the complainant has failed to establish that any act of harassment occurred during the statutory time frame for referring a complaint.

6. Decision

6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that:

(i) the respondent did not discriminate against the complainant on the disability ground pursuant to sections 6(1) and 6(2)(g) of the Acts in terms of Section 8 in relation to his conditions of employment;

(ii) The respondent did not constructively dismiss the complainant in terms of Section 2(1) of the Act;

(iii) There was no complaint of harassment referred within the statutory time limit;

(iv) The respondent did not victimise the complainant pursuant to Section 74 of the Act;

(v) The complaints of discriminatory treatment on the age ground were referred outside the statutory time limits.

_________________________

Marian Duffy

Equality Officer

14th August 2014