DEC-E2014-100

Equality Officer’s Decision No: DEC-E/2014/100

Parties

Conlon

(Represented by ESA Consultants)

-v-

Intel Ireland Ltd

(Represented by Mr. Des Ryan BL

Instructed by Eversheds Solicitors)

File No: EE/2011/383

Date of issue:30 December, 2014

 Headnotes: Employment Equality Acts 1998- 2008 – sections 6, 8,14A and 16 – harassment – discriminatory treatment – dismissal – disability –reasonable accommodation

1. DISPUTE

This dispute involves a claim by Mr. Andrew Conlon (“the complainant”) that he was (i) discriminated against by Intel Ireland Ltd (“the respondent”) on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to section 8 of those Acts, (ii) harassed by the respondent on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to section 14A of those Acts and (iii) dismissed by the respondent in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts. The complainant also claims that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008. The respondent rejects the complainant’s assertions in their entirety.

2. BACKGROUND

The complainant was employed by the respondent as an Equipment Maintenance Technician (“MT”) from February, 1992 until May, 2011. He asserts that during his period of employment he was treated in an unlawful manner by the respondent contrary to the Employment Equality Acts, 1998-2008 and that his employment was terminated in May, 2011 in circumstances amounting to discrimination contrary to the Acts. He further contends that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Acts after he returned to work in April, 2010 following after an absence of several months due to illness. The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 8 April, 2011. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 21 May. 2013 - the date it was delegated to me. Submissions were received from both parties and a Hearing on the matter took place on 7 August, 2013 and 14/15 November, 2013. A number of issue emerged at the Hearing which required further clarification and gave rise to further correspondence between the Equality Officer and the parties. This process concluded in mid-April, 2014. In addition, at the Hearing the complainant sought to advance allegations of victimisation. The respondent objected to this arguing that no such claim was referred to the Tribunal originally and that any attempt to advance to do so now was statute barred on the basis it was out of time. Having given both parties an opportunity to make oral submissions on the matter I ruled that there was no claim of victimisation before the Tribunal. The general practice of the Tribunal is to anonymise the identities of witnesses involved in a complaint and the parties agreed to the identities of the witnesses being withheld in this Decision.

3. SUMMARY OF COMPLAINANT’S CASE

3.1 The complainant states that he commenced employment with the respondent as an Equipment Maintenance Technician (“MT”) on 10 February, 1992. He states that in March, 1996 he was diagnosed with diabetes and that the respondent is on notice of this as a result of various 1:1 meetings he had with managers over the years, his attendance with the respondent’s Occupational Health Department on a number of occasions and the fact that he stored his insulin in the fridge. He adds that in August, 2009 he collapsed at home as a consequence of his diabetes and as a result of this he lost his eyesight totally and was absent from work from then until he was certified fit to resume his duties on 19 April, 2010 by his Ophthalmic Specialist (Dr. C), once he wore glasses and had regular check-ups. It is submitted on behalf of the complainant that this amounts to a disability in terms of section 2 of the Acts. The complainant contends that from the time he commenced his sick leave in August, 2009 he was treated less favourably and harassed by the respondent on grounds of disability contrary to the Acts. He adds that this alleged unlawful treatment of him continued following his return to work from sick leave until his employment was terminated in circumstances which he contends, amounts to discrimination of him on grounds of disability contrary to the Acts. In this regard the complainant states that the original recommendation to dismiss him was made by his Supervisor (Mr. X) on 15 September, 2010 although the final decision on the matter was not made until 30 May, 2011 by Mr. J following a series of appeals pursuant to internal procedures.

3.2 The complainant states that during his absence he kept in regular contact with his Supervisor (Mr. X) and kept him informed of how his eyesight was progressing. He adds that he also furnished regular (monthly) medical certificates covering the absence, sometimes to Mr. X and on other occasions to Occupational Health. The complainant further states that his Ophthalmic Specialist certified him fit to resume his duties on 19 April, 2010, once he wore glasses and had regular check-ups. The complainant states that he met with Dr. Z (the respondent’s Occupational Physician) on 19 April, 2010 and that he handed him a letter from his Ophthalmic Specialist stating the foregoing. He adds that he expected Dr. Z to subject him to a thorough eye-test but instead he was given a pamphlet to read by him - it is submitted that this does not amount to an adequate occupational assessment of the complainant given his prolonged period of absence due to his eyesight. The complainant states that Dr. Z recommended prescription safety goggles for him. In the course of the Hearing the complainant accepted that Dr. Z’s diagnosis was no different to that of Dr. C - his (the complainant’s) Ophthalmic Specialist. He added that he had expected Dr. Z to contact the Dr. C because the latter is an Eye Specialist and the former is not. The complainant stated that when Dr. Z did not suggest such contact he (the complainant) did not mention it. The complainant also accepted that he had also met with a nurse in the respondent’s Occupational Health Department (“OHD”) on 19 April, 2010 and was advised to contact that department if he experienced any further difficulties and that he never subsequently availed of that invitation. He further stated that he met with an Optician engaged by the respondent on 27 April, 2010; that the prescription goggles recommended were provided to him and that the necessary paperwork was approved by Mr. X without issue.

3.3 The complainant states that prior to his absence he was operating successfully at Level 2L standard. He adds that on his return to work in April, 2010 he was expected to operate at a higher standard - Level 2E. He further states that he was assigned a task at this higher level within two weeks of his return to work and whilst he was “buddied” with a colleague, he did not complete the task successfully. He adds that firstly, he had not been trained to perform the task and secondly he did not have the prescription safety goggles. The complainant states that he met with Mr. X on 26 April, 2010 and a Training Plan was established to enable him reach Level 2E. He adds that a Peer Trainer (Mr. D) was initially assigned to the role but this subsequently changed to Mr. E. In the course of the Hearing the complainant stated he did not suggest to Mr. X that the period set out in the training plan was too short or that he anticipated any problems in terms of his eyesight. It is submitted on behalf of the complainant that the respondent failed to engage in any meaningful way to enable him obtain the appropriate training in a fashion which took account of his disability. Instead he was expected to perform his duties and continue his training as if he did not have eyesight issues. The complainant submits that the respondent was fully aware of his eyesight deficiency and its impact of his capacity to perform his tasks and that it simply ignored these facts. In the course of the Hearing the complainant stated that (i) at no time subsequent to his return to work in April, 2010 did he furnish the respondent with any medical report indicating his eyesight was an issue in terms of his performance and (ii) apart from Mr. X he did not mention that his eyesight was causing him difficulties to any other member of Management or OHD. He further accepted, in response to a question from Counsel for the respondent, that he was familiar with the operation of the OHD and could have approached staff there but he chose not to. He further accepted that he had been invited to do so by Dr. X during the course of the appointment on 15 April, 2009.

3.4 The complainant states that the safety goggles he was given were inadequate having regard to the nature of the work he was doing. He adds that he spoke with Mr. X on 7 July, 2010 and advised him of this and requested a second pair. The complainant further states that Mr. X replied that the safety goggles would have to do as he (the complainant) was only entitled to one pair of safety goggles per year. He adds that he then informed Mr. X that the safety goggles did not enable him read the dials on the ovens etc. and as they were trifocal they were making him dizzy. The complainant states that Mr. X advised him to use a flashlight. In the course of the Hearing the complainant stated that he did not want “to rock the boat” by reverting to OHD – he had raised the matter with Mr. X and he expected it to be sorted, but it never was. He added that this was the first occasion he mentioned his eyesight as an issue in terms of his ability to perform his work. However, later in the Hearing, in response to a question from the respondent’s Counsel, he stated that he raised this matter with Mr. X on 8 June, 2010. The complainant stated that during this period he was wearing his own glasses under safety goggles which required him to put them on/remove them as necessary and this impacted on his productivity and performance.

3.5 The complainant contends that he spoke with Mr. X on several occasions about the effects of his eyesight on his ability to perform his tasks but was unable to say when these occurred stated that he did not meet with Mr. X between 7 July, 2010 and 21 August, 2010. He adds however, that during this period (May/June) Mr. X instructed him to carry a procedure known as “MIK” which is a visual inspection of wafers without magnification. In the course of the Hearing the complainant accepted that this was inconsistent with evidence previously submitted to the Tribunal and stated that the first occasion he had raised the issue of his eyesight with Mr. X was at a meeting on 8 June, 2009. The complainant accepts that this work is part of his role and states that when he was given the instruction by Mr. X he (the complainant) advised him that he would be unable to perform the task in a precise or time efficient manner given his eyesight difficulties. The complainant adds that Mr. X ignored these concerns and requested him to carry out the tasks. The complainant states that his eyesight difficulties caused him to work in a slower fashion – an issue which Mr. X criticised him for. He adds when he attempted to explain that his eyesight was a factor for the tardy performance Mr. X was dismissive of it. In the course of the Hearing the complainant stated that Mr. X did not admonish him on this occasion for the slow manner in which he performed the task. It is submitted on behalf of the complainant that this constitutes less favourable treatment of him on grounds of disability contrary to the Acts.

3.6 The complainant states that progress from Level 2L standard to Level 2E standard involves a range of tasks and the use of precise tools which require extreme concentration and a level of precision to which he had not worked prior to his absence. He adds that the respondent operates a policy whereby employees who are absent from work for more than six months are required to undertake re-skilling and re-training on their return. The complainant states that on his return to work he requested “vendor training” from Mr. X. The complainant states that “vendor training” is off-site training which is of a high level and provides the trainee with greater insight into the tool being used. He adds that this type of training was not provided – in this regard he states that this was not the first occasion he had requested “vendor training” and was refused. The complainant further states that he was the only member of his shift team who had not completed such training. In this regard he named five colleagues who had completed the training since 2004. The complainant asserts that he was deprived this specialised training which would have benefitted him greatly on his return to work. It is submitted that the actions of the respondent amounts to less favourable treatment of him on grounds of disability contrary to the Acts.

3.7 The complainant was adamant that he was only trained to Level 2L standard prior to his departure on sick leave in August, 2009. This was set out in both his written submissions to the Tribunal and his initial evidence to the Tribunal at the Hearing. He further stated that the Training Plan established on his return to work was to have him certified at Level 2E. He adds that the training provided was inadequate if he was to achieve that standard as it was basic peer training. However, in the course of the second day of Hearing, in response to a question from Counsel for the respondent, that complainant accepted that he had, in fact, been certified at Level 2E standard with effect from March, 2009. The complainant accepts that he met with Mr. X on 26 April, 2010 as part of the “Back to Work” process following an absence. He accepts that the period he was afforded by Mr. X to achieve recertification at Level 2E was the same duration as the period afforded any other employee in similar circumstances. He contends that given his eyesight difficulties this was too short a period and that he mentioned this to Mr. X but he took no heed of it and informed him that the timeframe (eight weeks) stood. The complainant accepts that he met with Mr. X on 8 June, 2010 but states that the e-mail issued to him by Mr. X immediately after that meeting misrepresents what occurred at same as it did not record his comment that he required more time to complete the training due to his eyesight. In the course of the Hearing he could not recall if he ever reverted to Mr. X to address the foregoing. The complainant further accepts that he met again with Mr. X on the matter on 7 July, 2010 and states that it was clear at that point he was struggling with the training. He states that Mr. X mentioned the possibility of a transfer to another role in the organisation at this meeting and that he (the complainant) expressed an interest in it during the meeting but that the matter never arose again.

3.8 The complainant states that he met again with Mr. X on 23 July, 2010. He states that at this meeting he expressed concern about how the Peer Training was progressing – there had been problems with the availability of the original Peer Trainer and a substitute had been appointed – but he did not raise his eyesight as an issue. There was also a delay with obtaining the tool. The complainant adds that Mr. X informed him that he would be tested for Level 2E certification the following week but this did not occur for a variety of reasons which were outside his (the complainant’s) control. The complainant states that he was tested by Mr. E sometime during week commencing 15 August, 2010 –nine weeks after the original date – and he failed the test. In the course of the Hearing the complainant stated that he never raised his eyesight as an issue with Mr. E during the test because he was a colleague and he (the complainant) assumed Mr. E was aware of his situation. The complainant states that he met with Mr. X on 21 August, 2010 when his test failure was discussed. The complainant adds that during this meeting Mr. X advised him that he (the complainant) was currently at Final Written Warning Stage of the Disciplinary Procedure and that the next stage was Recommendation for Termination of his employment. The complainant further states that he was re-tested by Mr. E on 10 September, 2010 and failed again. In the course of the Hearing the complainant accepted that he was on a Final Written Warning from October, 2008 but added that he believed this warning was only to remain in existence for nine months as per the Disciplinary Policy and that at the relevant time (August/September, 2010) it had expired.

3.9 The complainant states that he met with Mr. X on 15 September, 2010 and was informed by him that due to the fact that (i) the complainant was on a Final Written Warning and (ii) he had failed to reach Level 2E certification he (Mr. X) was recommending (to the Department Manager) that the complainant’s employment be terminated. The complainant adds that the respondent has a Performance Improvement Policy (“PIP”) where underperformance of an employee is addressed by establishing an action plan to deal with the underperformance and if this is not successful, it sets out a disciplinary procedure to be followed. The complainant states that this PIP process was not applied to him. Moreover, he asserts that colleagues were aware he was to be dismissed before he attended the meeting with Mr. X because Mr. X spoke with them. In this regard the complainant details a number of comments made to him by those colleagues in the period immediately following the meeting with Mr. X. Finally, the complainant states that Mr. X’s behaviour was informed by the fact that he believed the complainant had previously furnished negative feedback on him to Management. It is submitted that the entire process amounts to less favourable treatment of the complainant on grounds of disability contrary to the Acts.

3.10 The complainant states that Mr. X confirmed his recommendation to terminate the complainant’s employment by e-mail dated 21 September, 2010. He states that this e-mail confirms the reasons for his dismissal as outlined in paragraph 3.9 above and advises that the recommendation to terminate his employment is being sent to Mr. F (Department Manager) and that he was entitled to appeal this recommendation in writing to Mr. F by 1 October, 2010. He states that the e-mail also indicated he could be assisted in this process by a member of the HR Department (Ms. S) and her contact details were provided. The complainant states that he submitted an appeal to Mr. F by the deadline indicated and that he was assisted in the preparation of the document by Ms. S. In the course of the Hearing the complainant made an assertion that Ms. S dissuaded him from including his eyesight as a reason underpinning his poor performance in the testing. The complainant states that Mr. F approved the recommendation to terminate his employment and that this decision was communicated to him on 11 October, 2010. This letter advised that the complainant could appeal this decision to Ms. G (Factory Manager) before 25 October, 2010. The complainant states that he availed of this appeal process (this time with the assistance of another support person in HR) and Ms. G upheld the decision to terminate his employment and this was communicated to him in writing by letter dated 29 November, 2010. The complainant states that he subsequently appealed this decision to Mr. J (General Manager Intel Ireland) on 31 January, 2010. The complainant adds that by this stage he had engaged legal advice and he expressly made reference to his vision impairment in this written appeal. He states that Mr. J rejected the appeal and communicated this to the complainant by letter dated 30 May, 2011. The complainant argues that this constitutes discriminatory dismissal of him on grounds of disability as the respondent (Mr. J) completely disregarded his eyesight problems in reaching his conclusions. Moreover, the complainant alleges that the process was further tainted as Mr. F made a comment in his conclusions that the complainant had never received a promotion during his time with the respondent and this was incorrect. Finally, the complainant states that he sought to have legal representation present at the final appeal meeting with Mr. J and this was rejected. He adds that he was similarly denied the opportunity to be accompanied by an advisor/independent colleague at the other meetings pertinent to his dismissal and that this impacted on his ability to advance his case. In the course of the Hearing the complainant stated he was unaware whether or not other employees had been permitted legal or other representation at disciplinary meetings. In summary, it is submitted on behalf of the complainant that the failure of the respondent to adhere to its own policies and its reliance on the complainant’s failure inability to pass the Level 2E test due to his eyesight difficulties render his dismissal discriminatory on grounds of disability contrary to the Acts.

3.11 The complainant states that after Mr. F made the initial decision to terminate his employment with effect from 11 October, 2010 he (the complainant) was not permitted to attend the respondent’s site pending the appeals process. He states that sometime between October, 2010 and May, 2011 the respondent issued stock options which he was entitled to avail of. He further states that Mr. X should have advised him of the stock options and did not do so and as a result he (the complainant) lost money. The complainant states that he is unaware of any other employee who was treated differently by Mr. X in similar circumstances. It is submitted on behalf of the complainant that this amounts to less favourable treatment of him on grounds of disability contrary to the Acts

3.12 The complainant states that sometime in August, 2010 Mr. X approached him and asked if he (the complainant) would consider taking redundancy. The complainant states that Mr. X added he (the complainant) would receive a social security payment and could also perform “nixers” to supplement that income. The complainant adds that Mr. X had made a similar suggestion (over the phone) on approximately five occasions during his absence on sick leave. The complainant states that his response on this occasion, as it had been on all previous occasions, was that he was not interested in such a proposal. In the course of the Hearing the complainant stated that he did not know whether or not there was a redundancy package in existence at any of these times and if there was whether or not Mr. X had approached others with a similar proposal. It is submitted on behalf of the complainant that this amounts to less favourable treatment of him on grounds of disability contrary to the Act

3.13 The complainant states that from his return to work in April, 2010 a number of colleagues (details supplied), along with Mr. X frequently made remarks to him about guide dogs and called him “blind Andrew”. In the course of the Hearing the complainant was unable to say when these incidents occurred. He added that the “blind Andrew” comment was made on only one occasion and that it was made by Mr. P - the complainant overheard it. He further stated that he was aware of the respondent’s Dignity at Work Policy but he did not utilise it. It is submitted on behalf of the complainant that this alleged treatment constitutes harassment of him contrary to the Acts.

3.14 The complainant states that from the outset of his sick leave in August, 2009 he kept the respondent informed of how his recovery was progressing. He adds that within a couple of weeks of the commencement of his sick leave Mr. X phoned him and instructed him to get the medical certificates into him on a weekly basis. In the course of the Hearing the complainant stated he responded to Mr. X that he would send them in monthly. The complainant states that he (Mr. X) was not specific on how the certificates were to be sent to the respondent but the complainant believed he was required to deliver them by hand and this is what occurred initially. This arrangement continued for a while – he either left them for Mr. X or the OH Department - but then he began to send them by post. He added that he was unaware of what the respondent’s Sick Leave Policy required but that he had been absent on sick leave previously and he had not been required to deliver the medical certificates. The complainant adds that as he was unable to drive due to his eyesight problems his father drove him to the respondent’s premises to hand deliver the certificates. He further states that on one such occasion (sometime before early November, 2009) Mr. X was unavailable when the complainant arrived and he was stopped at reception by security. The complainant adds that when Mr. X was eventually located he berated him for ringing him when he was busy. The complainant adds that when he was on sick leave he spoke with Mr. X by phone on several occasions and Mr. X persistently asked him when he was resuming work. It is submitted on behalf of the complainant that this constitutes harassment of him on grounds of disability contrary to the Acts. In the course of the Hearing (in response to a question from Counsel for the respondent) the complainant stated that although he was aware of the respondent’s Dignity at Work Policy he did not invoke it because Mr. X had wrongly accused him (in April, 2006) of providing negative feedback on Mr. X in a 360 degree feedback process and he (the complainant) was of the opinion there would be repercussions if he reported Mr. X’s alleged harassment of him.

3.15 The complainant raises two other issues which it is submitted amount to discrimination and/or harassment of him on grounds of disability contrary to the Acts. The first of these refers to his exclusion from an e-mail on 22 August, 2008 which was circulated to his colleagues by Mr. X. The second refers to an occasion in June, 2009 when Mr. X (in front of Mr. D) requested the complainant to work additional hours despite Mr. X knowing that he required regular rest and meals due to his medical condition. It is submitted that these issues amount to unlawful treatment of him contrary to the Acts.

3.16 It is submitted on behalf of the complainant that the respondent failed to afford him reasonable accommodation in accordance with section 16 of the Acts. The complainant states there are several elements to this aspect of his complaint. The first is the failure of the respondent to provide him with proper safety goggles which complied with his prescription needs. Secondly, he could have been afforded a longer period of training to reach Level 2E standard. Thirdly, he could have been given longer breaks or a greater amount of small breaks during a shift. In this regard the complainant was unable to say when and with whom he had raised such an accommodation. Finally, he could have been taken off night shifts. He adds that prior to his absence on sick leave he worked a month of days followed by a month of nights on three/four day shift pattern. He adds that he returned to work in April, 2010 on this arrangement. He states that he asked Mr. X if he could be assigned to day shifts only and Mr. X told him this was not possible. It is submitted on behalf of the complainant that all, or any, of these accommodations could have been provided by the respondent and they were not considered.

4. SUMMARY OF RESPONDENT’S CASE

4.1 The respondent rejects the complainant’s assertions in their entirety. It accepts that the complainant’s medical conditions amount to a disability in terms of section 2 of the Employment Equality Acts, 1998-2008 but states that he was certified fit to resume work by his both his own Ophthalmic Specialist and the company’s Occupational Health Physician in April, 2010 and consequently, it does not accept that he suffered from a disability from 19 April, 2010 onward. The respondent accepts that the complainant was absent from work from August, 2009 due to sight loss. It adds that from the outset of his absence the complainant had regular contact with its OHD, the first of these appointments occurring on 24 November, 2009. In this regard the respondent’s Occupational Physician (Dr. Z) attended the Hearing and gave evidence. He stated that he has been in that role since 1989. He added that the complainant attended for review with him on 29 November, 2009 (when he was accompanied by his father) during which the complainant advised that his Ophthalmic Specialist (Dr. C) had indicated to him (the complainant) that his vision would return and that he expected to be fit to resume work in January, 2010. The respondent (Dr. Z) added that he scheduled a follow up appointment for the complainant with OHD for 6 January, 2010 but this was cancelled due to severe weather conditions. The respondent states that the complainant contacted the OHD on 18 February, 2010 to arrange an appointment with Dr. Z and advised that he (the complainant) was to be reviewed by Dr. C the following week. Consequently, Dr. Z met with the complainant on 3 March, 2010. Dr. Z stated that in the course of this meeting the complainant advised that Dr. C was pleased with his (the complainant’s) progress but that he was unfit to resume duty – an opinion he (Dr. Z) concurred with. Dr. Z added that he scheduled a further appointment to review the complainant on 15 April, 2010 and that he e-mailed Mr. X (on 3 March, 2010) updating him on the current position with the complainant.

4.2 The respondent states that the complainant met with Dr. Z on 15 April, 2010. In the course of the Hearing Dr. Z stated that on this occasion the complainant attended the appointment unaccompanied. Dr. Z added that the complainant informed him that his Ophthalmic Specialist was happy for him to return to work, without restriction, although he now had to wear glasses for daily activities. Dr. Z accepted that he did not have the complainant perform a full eye-test but instead he gave him an elementary vision test where he was given a book to read and he (the complainant) read it easily. Dr. Z added that in the circumstances he concurred with Dr. C’s opinion and was satisfied that the complainant’s vision was sufficiently restored to render him fit to resume duty once he wore correctional glasses. He added that he advised the complainant to contact the respondent’s Optician to arrange suitable corrected prescription goggles which met with the respondent’s safety standards. Dr. Z added that he believed this approach was consistent with the opinion given by Dr. C and consequently he (Dr. Z) had no problem certifying that the complainant was fit to resume duty, without restriction, once he wore the appropriate standard of glasses. The witness added that he informed the complainant to contact OHD if he experienced any difficulty on his return to work but to his (Dr. Z’s) knowledge the complainant did not make any such contact. Dr. Z stated that he e-mailed Mr. X on 15 April, 2010 advising of the updated position as regards the complainant.

4.3 The respondent states that complainant returned to work on the next available shift which was 19 April, 2010. It adds that he met with a nurse from OHD that day and raised no issues or problems. The respondent further states that Mr. X met with the complainant on 26 April, 2010 as part of the “Back to Work” process. The respondent accepts that during this meeting a timeframe was established for the complainant to acquire re-certification at L2E standard. The respondent rejects the complainant’s assertion that he was only certified at the lower L2L standard before his period of sick leave and states that he was certified at L2E standard at that time – having achieved that standard on 10 March, 2009. The respondent (Mr. X) states that at the meeting of 26 April, 2010 he enquired of the complainant how he was feeling and in particular, how his eyesight was and the complainant replied he was fine. The respondent states that the following day the complainant attended the Optician engaged by it and he was provided with the appropriate prescription stand safety goggles as required. In the course of the Hearing Mr. X stated that the complainant never raised any issues with him about his (the complainant’s) eyesight or that it was causing him difficulty performing his work. Mr. X further stated that the complainant never indicated to him that the safety goggles supplied were causing difficulty and were not suitable. Mr. X emphatically rejects the complainant’s assertion that he (Mr. X) informed the complainant that the safety goggles he had received would have to do and refused him another pair or that he told the complainant he could use a flashlight. Mr. X added that there was no rule restricting employees to only one pair of safety goggles and that it is common practice to replace them as necessary without any issue arising. The respondent confirms that this is the case and states that it was entirely open to the complainant to revert to OHD in the circumstances. Counsel for the respondent notes that the complainant states he did not contact OHD because he “did not want to rock the boat”. Counsel submits that the complainant’s stance in this regard is unsustainable as he cannot point to any experience he had with OHD which supports his reluctance to adopt such an approach, particular when he was expressly invited to contact it (by members of that department) if necessary. Counsel further notes the complainant’s acceptance that Mr. X signed off on the prescription standard safety goggles for him without hesitation when his (Mr. X’s) approval was sought (in accordance with internal procedures) by OHD.

4.4 The respondent states it is company policy for employees who are absent for prolonged periods to recertify at the standard they held immediately before the absence. It adds that the complainant was certified at L2E standard – having achieved that standard on 10 March, 2009, prior to his departure on sick leave. Consequently, it was recertification at that standard which the complainant was required to achieve on his return to work in April, 2010. The respondent adds that Mr. X met with the complainant on 26 April, 2010 during which this issue was discussed. In the course of the Hearing Mr. X stated that a period of six weeks was set for the complainant to recertify to L2E standard – this meant that the recertification was to be completed by 19 June, 2011. Mr. X added that this was agreeable to the complainant – he did not raise any concerns about the period posing any problem and he did not raise any issues about his eyesight. The respondent states that the complainant was immediately assigned a Peer Trainer (Mr. D). The respondent further states that the next meeting between Mr. X and the complainant took place on 8 June, 2010. In the course of the Hearing Mr. X stated that the complainant advised he was confident of achieving the certification and he would speak with Mr. D and arrange sign-off. The respondent adds that the recertification did not take place as planned due to the unavailability of the Peer Trainer (Mr. D) and the necessary tool and that an alternative Peer Trainer (Mr. E) was assigned to the complainant. The respondent further states that the next time Mr. X met with the complainant was 7 July, 2010 during which the issue of the complainant’s recertification was again discussed. In the course of the Hearing Mr. X stated he informed the complainant that he (Mr. X) had been advised by Mr. E that the complainant was disorganised and not up to the same speed as his peers and may experience difficulty achieving recertification at Level 2E standard. The witness added that the complainant’s eyesight was never discussed as an issue in this regard between him and Mr. E. He added the complainant did not make any reference to him that his eyesight was a factor contributing to his failure in reaching the necessary standard. Mr. X stated that at this meeting he offered the complainant an alternative position and the complainant advised he would revert to him within the week. The witness stated that the complainant never reverted to him and he (Mr. X) never followed the matter up.

4.5 The respondent states that Mr. X met with the complainant again on 23 July, 2010. In the course of the Hearing Mr. X stated that during this meeting it was confirmed that the recertification test would take place the following week and confirmed that the complainant did not raise any issue about his eyesight. The respondent accepts that due to factors outside of the complainant’s control the test did not take place until during the week commencing 15 August, 2010 and the complainant failed the test. The respondent states that Mr. X met with the complainant on 21 August, 2010 and informed him that Mr. E did not consider him sufficiently proficient to certify him and he (Mr. X) asked the complainant if there was any assistance he could provide. Mr. X states that the complainant requested certain assistance (quartz test) and this was provided to him. Mr. X adds that in the course of this meeting he advised the complainant he was at Final Written Warning Stage of the respondent’s Disciplinary Process and that as he has failed recertification the next stage in the process was Recommendation for termination of his employment. The respondent states that the complainant was re-tested by Mr. E on 10 September, 2010 and again failed to achieve the required standard for Level 2E certification.

4.6 The respondent rejects the complainant’s assertion that the training he was afforded on his return to work was inadequate to facilitate his recertification at Level 2E standard or that its actions in terms of what it provided amount to less favourable treatment of the complainant on grounds of disability contrary to the Acts. It adds that the complainant had nineteen weeks within which to achieve recertification standard – generally staff are only given six weeks to do so. The respondent further states that during this period the complainant had several 1:1 meetings with his Line Manager and never raised any difficulties with the process – and he never raised his eyesight as a factor. Moreover, he never mentioned it to Mr. E. The respondent accepts the several of the complainant’s colleague’s received vendor training during 2008. It adds however, that vendor training is only offered to staff who have achieved Level 3 standard certification and as the complainant was not at that level the training would not have been suitable for him. The respondent added that the staff identified by the complainant were all at Level 3 or higher standard and furnished the Tribunal with documentation supporting this. It is argued on behalf of the respondent that the decision not to send the complainant on vendor training was not connected in any way whatsoever with his disability and consequently it does not amount to less favourable treatment of him contrary to the Acts. In the course of the Hearing Mr. X accepted that he had asked the complainant to perform a task known as “MIK” but strongly rejected that (i) the complainant informed him that he (the complainant) was struggling with the task due to his eyesight and (ii) that he (Mr. X) was dismissive of the complainant. He further accepted that as he is measured by how he manages his staff and their output he may have been dissatisfied at the complainant’s performance and related this to him. The respondent argues that this would be normal management practice in the circumstances and submits that the complainant was not harassed contrary to the Acts.

4.7 The respondent states that following the complainant’s failure to achieve certification at Level 2E on 10 September, 2010 Mr. X subsequently recommended termination of the complainant’s employment in accordance with the respondent’s Disciplinary Policy and met with the complainant’s on 15 September, 2010 to discuss the matter. In the course of the Hearing Mr. X confirmed that the factors taken into consideration by him in reaching this decision were (i) the complainant’s previous performance history, (ii) the fact that the complainant was at the Final Written Warning Stage of the Disciplinary Process and (iii) the fact that the complainant had failed to achieve re-certification at Level 2E standard – a core expectation for someone of the complainant’s grade and job description. Mr. X rejected the complainant’s assertion that any other factors influenced his decision – adding that the survey referred to by the complainant about negative feedback (in April 2006) was an anonymous one and consequently he (Mr. X) was unaware of the source of any comments about his management style/performance. Mr. X further stated that he did not consider the PIP Process to be relevant as the complainant was at Final Written Warning Stage of the Disciplinary Process. In response to a question from the complainant’s representative he accepted it was reasonable for the complainant to expect that once the period referred to in the Final Written Warning had elapsed the Warning was expunged. He further accepted he was aware that the complainant’s absence was as a result of a serious eye injury but added that as far as he was concerned the complainant had been medically certified to resume duty without restriction. The respondent states that Mr. X confirmed his decision to recommend the termination of the complainant’s employment to the complainant in writing by letter dated 22 September, 2010. It adds that this letter also advised that the complainant could appeal this decision to Mr. F and in this regard he could seek the assistance of Ms. S (HR Department) under the respondent’s Employee Assistance Programme.

4.8 Ms. S attended the Hearing and stated that her role, inter alia, was to provide support and assistance to employees where possible. She added that the complainant contacted her in mid-September, 2010 seeking her assistance in respect of formulating an appeal of Mr. X’s recommendation to terminate his employment. She added that she met with the complainant and advised him to put as much information as possible into the documentation. She stated that the complainant made no reference to his eyesight and she emphatically rejected the complainant’s assertion that she counselled him to refrain from making any reference to his eyesight in the material to be submitted to Mr. F. The respondent’ Department Manager (Mr. F) attended the Hearing. He stated that he met with the complainant on 1 October, 2010 and went through the appeal documentation with him. The witness stated that the complainant had a strong historic pattern of underperformance and had not appealed the Final Written Warning issued in October, 2008. He added that in his opinion it was appropriate and reasonable for Mr. X to recommend termination of his employment and this was consistent with the respondent’s progressive disciplinary policy when “subsequent issues arise”. Mr. S stated that in all of the circumstances he decided to approve Mr. X’s recommendation to terminate the complainant’s employment and he informed the complainant of this by letter dated 1 October, 2010. He added that this letter advised that this decision could be appealed to Ms. G and that the complainant exercised this right of appeal. Mr. F stated that the complainant did not raise his eyesight as an issue at any stage and Counsel for the respondent noted that the only reference to his eyesight contained in the appeal documentation submitted by the complainant was “I did have an LTA in August, 2009 to April, 2010 due to me losing my sight due to collapsing at home and hitting my head. I recovered from this and returned to work much earlier than expected….”.

4.9 The respondent’s Factory Manager (Ms. G) attended the Hearing. She stated that she met with the complainant (who was accompanied by a member of HR) on 28 October, 2010. The witness stated that she reviewed all of the documentation presented to her, including Mr. F’s decision and all the associated management documentation. She added that she also spoke with both Mr. X and Mr. F. She stated that the complainant never made any reference to his eyesight as having any bearing on his appeal. Ms. G stated that having considered all of the information available to her she decided to uphold Mr. F’s decision to terminate the complainant’s employment and she advised the complainant of this in writing by letter dated 29 November, 2010. The respondent states that the complainant was afforded the opportunity to appeal this decision to Mr. J, General Manager Intel Ireland and Vice-President of Technology and Manufacturing Group, Intel Corporation. Mr. J attended the Hearing. He stated that the complainant made reference to his disability in the course of this appeal. The witness stated that he spoke with Dr. Z in this regard and was informed by Dr. Z that the complainant had been certified fully fit to resume work in April, 2010. He noted that the complainant had not previously raised his eyesight as an issue and had failed to take up the offer of reverting to OHD after his return. Mr. J added that consequently he was satisfied that the complainant’s disability had no bearing on the decision to terminate his employment. He upheld that decision and communicated the outcome to the complainant by letter dated 30 May, 2011. The respondent accepts that the complainant was not permitted to be accompanied by his legal representative at the meeting with Mr. J. It adds that it is not its practice to allow an employee be accompanied by a legal advisor and no other employee has been afforded that facility. It further states that the complainant had formulated his appeal document with the benefit of legal advice and had the assistance of the HR Department throughout the process. It adds that the complainant was not treated any differently to other employees and argues therefore that the complainant was not treated less favourably on the ground advanced. It is submitted on behalf of the respondent that the complainant’s dismissal was for reasons related to performance and capability, in particular his failure to achieve recertification at the level commensurate with his grade and job description and had nothing to do with his disability.

4.10 The respondent accepts that the complainant was informed by Mr. F, in his letter of 11 October, 2010 that he (the complainant) should not access the respondent’s site pending any appeal of the decision to terminate his employment, without the prior approval of his Line Manager or HR. It adds that these arrangements apply to all employees who are engaged in those processes. The respondent states that a professional third party (details supplied) oversee and manage the stock options programme. It adds that Management have no role in the matter and the relationship is a personal one between the professional third party and the employee. It is submitted therefore that the alleged treatment of the complainant does not amount to discrimination of him contrary to the Acts.

4.11 The respondent states that there were no redundancy packages, voluntary or otherwise, during the period October, 2009 – September, 2010. It adds that the last voluntary package was offered to employees in May, 2009. In the course of the Hearing Mr. X emphatically rejected the complainant’s assertions he (Mr. X) had suggested on several occasions that the complainant might take redundancy. The respondent adds that Mr. X would have no authority to make such a suggestion absent some formal arrangements approved by the respondent.

4.12 The respondent states that it has a comprehensive Dignity at Work/Harassment Policy and this is circulated to all staff. The respondent adds that this Policy provides for, inter alia, a formal investigation into allegations of harassment on any of the nine discriminatory grounds covered by the employment equality legislation by an independent investigator. The respondent states that the complainant did not, at any time relevant to this complaint, invoke the Policy by reporting the alleged behaviour of his colleagues from April, 2010 onwards. In the course of the Hearing Mr. X stated that the complainant made no such complaint to him. In addition, Mr. X rejected, in the strongest terms, the complainant’s allegation that he heard Mr. X refer to him as “blind Andrew”. It is submitted on behalf of the respondent that the complainant has failed to discharge the probative burden required of him under the Acts, but if he has then the respondent is entitled to avail of the defence under section 14A(2) of the Acts.

4.13 The respondent states that employees on sick leave are required to forward medical certificates covering any sick absence to their Manager in a timely manner. The respondent adds that it is a matter for the employee to decide how s/he fulfils this obligation – some arrange for them to be hand delivered (personally, by family members or by colleagues) and others send them by post. If further states that it does not require any employee to personally deliver medical certificates. In the course of the Hearing Mr. X emphatically rejected the assertion that he had instructed or required the complainant to deliver his medical certificates to the plant personally. Mr. X accepted that the complainant may have attended the plant with his father on occasion and that they were detained at the security hut when he was located. He rejected the assertion that he berated the complainant for disturbing him when he met him on that occasion. The respondent (Mr. X) accepts that there were a number of telephone conversations between him and the complainant during the period the latter was on sick leave. The respondent rejects the assertion that the number and/or content of these telephone conversations amount to unlawful treatment of the complainant on grounds of the disability contrary to the Acts. It states that there were around twenty-five telephone contacts between them during the period September, 2009-April, 2010- details as follows. Three of these occurred in September, 2009 – Mr. X rang the complainant on two occasions to advise of the impact of sick absence on shift allowance. The complainant did not answer these calls and Mr. X left a voicemail. The complaint range Mr. X to confirm he was undergoing an eye operation. There were two calls between them in October, 2009 concerning arrangements for the complainant to attend Dr. Z. One call took place in November, 2009 in respect of arrangements/forms for the income continuance plan. Four calls occurred in December, 2009 – two concerned the complainant’s attendance with his Ophthalmic Specialist and the others about the income continuance issue. Five calls took place in January, 2020 but three of these were instigated by the complainant. Three calls occurred in February, 2010 all connected with the complainant’s improving condition – one of which emanated from the complainant. No calls occurred during March, 2010 and there were five in April – four about the complainant’s visits to Dr. Z and his Ophthalmic Specialist and one about his new postal address. In the course of the Hearing Mr. X stated that during these conversations he would have naturally enquired after the complainant’s health and progress but rejects the assertion that he harassed the complainant in any way. The respondent submits that the calls fall into categories covering (i) the complainant’s health and medical progress, (ii) various medical appointments and (iii) issues connected with the income continuance plan. It submits that these are consistent with the contact made to any employee on long-term absence and that the actions of Mr. X were those of reasonable and concerned manager entitled to contact the complainant when he was absent on sick leave.

4.14 The respondent (Mr. X) accepts that the complainant was not included on an e-mail issued by him on 22 August, 2008. He adds that this occurred because he needed one of his more experienced Maintenance Technicians to chair a meeting for the team as he (Mr. X) was unable to do so. Mr. X further stated that the complainant did not fall into this category. Moreover, other staff were excluded because they too did not have the necessary experience. The respondent (Mr. X) states that the decision to exclude the complainant from the e-mail had nothing to do with any disability he may have had at that time. The respondent (Mr. X) does not remember the meeting with the complainant and Mr. D in June, 2009. He states that it was not his practice to force any member of staff to work overtime and instead he would see if anyone was interested in it. He adds that usually staff were accommodating if the need arose. The respondent states a review of the complainant’s time records shows that he only worked overtime on a small number of occasions during the period 2005-2010. It is submitted on behalf of the respondent that neither of these issues amount to discrimination and/or harassment of him contrary to the Acts.

4.15. The respondent states that as an organisation with several thousand employees it is well aware of its responsibilities in terms of the provision of reasonable accommodation under the legislation. The respondent argues, without prejudice to its arguments that the complainant did not have a disability following his return to work in April, 2010, or that if he did that the respondent was unaware of it, that it complied fully with its obligations under section 16 of the Acts. It notes that the test in this regard in set out Humphries v Westwood Fitness Club[1] and states that at the relevant time it had separate medical opinion from both the complainant’s Ophthalmic Specialist and its own Head of OHD (Dr. Z) which were in agreement – the complainant could resume duties without restriction once he wore the prescribed strength spectacles. The respondent states that it arranged to provide the complainant with the appropriate prescription safety goggles and the complainant was invited to revert to OHD if he encountered any problems. It adds that the complainant never availed of this invitation and that moreover, despite several opportunities to do so between then and the end of the process which terminated his employment, he never advised anyone that he eyesight was a problem for him The respondent submits that in those circumstances it was reasonable for it to assume that there was no impediment to the complainant performing his job and as a result no obligation attached it to provide him with “appropriate measures”. In this regard the respondent relies on the Decisions of this Tribunal in Healy v HSE West Area[2] and Mr. F v A Supermarket[3] where knowledge by the respondent that the complainant had a disability was a significant factor in attaching liability to the employer.

4.16 In summary, the respondent rejects the complainant’s claim in its entirety. Counsel for the respondent submits that complainant has failed to discharge the initial probative burden required of him in all aspects of his complaint. Counsel argues that all the complainant has advanced is allegations and speculation unsupported by any evidence and that this has been held by the Labour Court to be insufficient to discharge the initial burden of proof [4]. Counsel concludes by stating that the complainant’s credibility must be in question. In this regard he focusses on the complainant’s persistent contention that he was being expected to recertify at a higher level on his return to work in April, 2010 to that he held prior to his sick leave and that he only accepted that this was incorrect when presented with documentary evidence of this on the second day of the Hearing.

5. CONCLUSIONS OF EQUALITY OFFICER

5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts, (ii) harassed the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 14A of those Acts, (iii) dismissed the complainant in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to section 8 of those Acts and (iv) failed to provide the complainant with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008. 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.

5.2 Section 85A of the Employment Equality Acts 1998- 2008 sets out the burden of proof which applies to claims of discrimination. 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 Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination in respect of the alleged unlawful treatment of him. It is only if this initial burden is discharged and I am satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainantdoes not discharge the initial probative burden required, his case cannot succeed.

5.3 The first thing which I must address is whether or not the complainant is entitled to maintain his proceedings before this Tribunal. The respondent accepts that the conditions the complainant suffered from – blindness and diabetes – are disabilities in terms of section 2 of the Employment Equality Act, 1998-2008. It is clear that the complainant seeks to rely on his blindness and the subsequent vision impairment to ground his complaint. It is common case that the complainant was absent from work from August, 2009 until April, 2010 due to blindness occasioned by a fall he suffered. The complainant’s Ophthalmic Specialist certified him fit to resume work, without restriction in April, 2010. The only conditions attached to this were that the complainant (i) wore prescription standard glasses at work and (ii) attended for regular eye check-ups. The respondent’s Occupational Physician concurred with this opinion and the complainant resumed duty shortly after 19 April, 2010. The respondent argues that in light of the foregoing the complainant did not have a disability at the times relevant to his complaint and consequently he has no basis upon which to maintain his proceedings before this Tribunal. Section 2 of the Employment Equality Acts, 1998-2008 defines disability as follows –

“(a) the total or partial absence of a person’s bodily or mental functions...

(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.....

(e) a condition, illness or disease which affects a person’s thought processes.....

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

It is clear therefore that the Acts provide protection against unlawful treatment for disabilities which exist at present or which previously existed. The complainant’s circumstances clearly fall into one of these definitions. Consequently, I am satisfied that the complainant can maintain his proceedings before this Tribunal.

5.4 Before proceeding two further issues of a procedural nature require attention. The first of these refers to the issue of the complainant seeking to rely on the same set of facts to ground claims of less favourable treatment and harassment. In A School v A Worker[5] the Labour Court held that as a matter of principle a complainant could not rely on the same facts to obtain redress under more than one head of liability under the Acts. It further decided that these overlapping claims could be addressed in the alternative and I propose to adopt that approach in the instant case where relevant. The second issue refers to the issue of looking at alleged events which extend beyond the period of six months prior to the date of referral of the complaint. Whilst cognisant of the Determination of the Labour Court in Hurley v Cork VEC[6] I have decided to look at all elements of the complaint, including those which predate 9 October, 2009. I do so in the interest of completeness – the Labour Court will have a decision at first instance on these matters. In addition all of the alleged behaviour involves Mr. X to some degree; the respondent was aware of this alleged behaviour and responded to same in its initial submission to the Tribunal and did not raise any objection to this approach.

5.5 I shall look at the complainant’s allegations of less favourable treatment in the first instance. The complainant contends that on his return to work in April, 2010 he was not subjected to adequate examination by the respondent’s Occupational Physician and that this led to him being furnished with unsuitable prescription level safety goggles which impacted on his ability to perform his duties. Whilst this issue is also relevant to the complainant’s claim in terms of reasonable accommodation I will address it at this juncture. When the complainant returned to work both his Ophthalmic Specialist and the respondent’s Occupational Physician opined that the complainant was capable of returning to work, without restriction, subject to the complainant wearing glasses and receiving regular eye tests. This opinion was communicated to the respondent (Mr. X) by e-mail dated 15 April, 2010. It is common case that Dr. Z arranged for the complainant to attend the respondent’s Optician to arrange suitable corrected prescription goggles which met with the respondent’s safety standards. It is common case that these prescription safety goggles were provided to the complainant and that he (the complainant) was advised that if he had any problems he should revert to OHD. The complainant accepts that this was the case but that he chose not to do so. He offered no credible reason for his failure to do so other than “he did not want to rock the boat”. I am satisfied, on balance, that the complainant had no previous negative encounters with OHD that could give rise to his decision.

5.6 The complainant states he advised Mr. X that the goggles were unsuitable for him. In the course of the Hearing the complainant stated that this occurred on 7 July, 2010. He subsequently resiled from this stating that it was 8 June, 2010. His evidence was that when he raised this matter Mr. X told him he (the complainant) was only entitled to one pair of goggles per year. The respondent (Mr. X) emphatically rejects this stating that there was no such restriction in place. Indeed, Mr. X states that the complainant never raised his eyesight as an issue with him. When there is direct conflict between evidence of two people an Equality Officer must decide, on balance, which version of events s/he considers the more credible in all of the circumstances. I note that Mr. X approved the original request for the prescription safety goggles without issue. I further note the respondent’s evidence that there was no restriction on the number of pairs of goggles an employee could obtain. Finally, the complainant was inconsistent as to when he raised the matter. Consequently, I prefer, on balance, the respondent’s version of events on this issue. In light of my comments in this and the preceding paragraph I find that the complainant has failed to establish a prima facie case of less favourable treatment in respect of this element of his complaint and it cannot therefore succeed.

5.7 The complainant states that when he resumed work in April, 2010 he was expected to recertify at Level 2E standard, which was at a higher level than he had attained before his absence. He further argued that the level of training he was afforded by the respondent was inadequate to reach this level. In particular, he contends that the respondent afforded vendor training to his colleagues and refused to afford him the same access to this training. It is submitted that these issues constitute less favourable treatment of him on grounds of disability contrary to the Acts. The respondent states it is policy that all employees returning from long-term absence have to recertify at the standard they held immediately before that absence. It adds that the complainant had attained Level 2E standard prior to his absence and it was this level he was required to recertify at on his return. The respondent states that he was assigned a Peer Trainer immediately and received a period of nineteen weeks to reach the recertification – other employees are required to reach the necessary standard within six weeks. Finally, it states that vendor training is only offered to staff who have achieved Level 3 standard certification and as the complainant was not at that level the training would not have been suitable for him. In the course of the Hearing the complainant accepted that he was incorrect in his assertion that prior to his absence he was only certified at Level 2L standard and had been, in fact certified at Level 2E standard since March, 2009. Consequently, I am satisfied that the complainant was not treated any differently to other employees in similar circumstances and I find that the respondent’s actions by requiring him to recertify at that level does not amount to less favourable of him contrary to the Acts.

5.8 The respondent contends that the complainant was afforded, in effect, preferential treatment in terms of the support he received to reach Level 2E recertification following his return to work. Having evaluated all of the evidence adduced by the parties on this issue I am satisfied that this is an accurate reflection of what occurred. The complainant received Peer Training from Level 3 colleagues, firstly Mr. D and subsequently Mr. E. He was also afforded, although through fortune rather than design, a period of nineteen weeks to attain the necessary standard – three times as long as the period afforded to other colleagues. I note that the complainant agreed to the timetable discussed at the meeting with Mr. X on 16 April, 2010. I further note that he accepts he did not raise his eyesight difficulties at this meeting. I find this somewhat odd given his (the complainant’s) opinion that his vision would pose problems for him. I cannot accept his assertion that he was afraid to raise this issue with Mr. X and find that he has adduced no credible evidence to support such an assertion. There is direct conflict between the parties on the issue of whether or not the complainant raised the issue of his eyesight with Mr. X at any stage. On balance I prefer Mr. X’s evidence on this matter. In reaching this decision I am mindful of the inconsistency of the complainant’s evidence – he first stated he mentioned his eyesight to Mr. X in the course of a meeting on 7 June, 2010 and subsequently changed this to 8 July, 2010. Moreover, I note the complainant’s confirmation that he never raised this issue with any member of Management in the respondent during this period. Again I find this odd given the complainant’s assertion that the behaviour of Mr. X was stressful for him. Finally, the complainant states that he did not mention his vision impairment as an issue to either of the Peer Trainers. One might expect that if he had difficulty mentioning it to Mr. X he had no reason to display such reluctance in respect of Mr. D and Mr. E. In light of the foregoing I find that the complainant has failed to establish facts from which an inference of discrimination could be raised and this element of his complaint fails.

5.9 The final issue comprising this element of the complainant’s claim is the failure of the respondent to afford him vendor training when it had provided such training to a number of (named) colleagues. The respondent states that this level of training is unsuitable as it is only offered to staff at Level 3 or higher and the complainant was not at that standard. In support of this position the respondent furnished the Tribunal with documentation demonstrating that the staff identified by the complainant as being the recipients of vendor training were all at Level 3 or higher standard. I have examined this documentation and I am satisfied that this is the case. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in respect of this element of his complainant and it cannot succeed.

5.10 It is common case that sometime after the complainant returned to work in 2010 he was requested by Mr. X to perform a procedure known as “MIK”. It is also common case that this procedure is one which requires a high level of concentration and full eyesight. The complainant asserts that Mr. X requested him to perform this task in the full knowledge that he (the complainant) would have significant difficulty with it due to his impaired vision and would therefore provide Mr. X with the opportunity to criticise him, which the complainant’s alleges he did and that his behaviour constitutes discrimination of him (the complainant) contrary to the Acts. The complainant adds that when he attempted to explain that his slow performance was due to his poor eyesight Mr. X was dismissive of him. Mr. X rejects the complainant’s assertion that he was aware of the complainant’s vision problems and that he was dismissive of him. He accepts, however, that as he is measured by how he manages his staff and their performance he may have been dissatisfied by the complainant’s performance and related this to him. Having carefully assessed the evidence adduced I prefer, on balance, that of Mr. X. In reaching this decision I am cognisant of the complainant’s own evidence that Mr. X did not admonish him for the length of time it took to perform the task and elevate it to a higher level that having words with him. Consequently, I find that the complainant has failed to establish a prima facie case of harassment contrary to the Acts and this element of his complainant cannot succeed.

5.11 I shall now look at the circumstances surrounding the termination of the complainant’s employment with the respondent. The complainant argues, in essence, that the failure of the respondent to adhere to its own policies and its reliance on his failure to recertify at Level 2E due to his eyesight difficulties render his dismissal discriminatory on grounds of disability contrary to the Acts. The respondent states that the complainant’s dismissal was for reasons related to performance and capability, in particular his failure to achieve recertification at the level commensurate with his grade and job description and had nothing to do with his disability. It further states that the complainant was afforded due process at all stages, in accordance with its Disciplinary Policy, before his dismissal was considered or confirmed. I have carefully considered the evidence adduced by both parties on the process followed by the respondent in terminating the complainant’s employment. This process commenced on 15 September, 2010 when Mr. X recommended termination of the complainant’s employment and concluded with Mr. J’s letter of 30 May, 2011 to the complainant upholding the original decision. It is clear that Mr. X’s initial recommendation was based on several factors – the most important of which were (i) the complainant’s failure on two separate occasions to achieve recertification at Level 2E following his return to work and (ii) his (Mr. X’s) opinion that the complainant was on a Final Written Warning under the respondent Disciplinary Policy.

5.12 The complainant argues that this Final Written warning had expired and that Mr. X acted unfairly by including it as part of his deliberations. A copy of this Written Warning was opened to me. It is dated 22 October, 2008 and clearly states that it remain in force for nine months. This means that the effects of the Warning would expire purely on the basis of effluxion time on 21 June, 2009. Consequently, using the Warning as if its terms were still in operation on 15 September, 2009 appears, on the face of it, to be unfair. However, the issue before this Tribunal is whether or not the process was tainted by discrimination and not whether or not it was fair. The second factor which influenced Mr. X’s decision was the failure of the complainant to achieve recertification at Level 2E on two separate occasions in August/September, 2010. I have already found (in paragraphs 5.7-5.8 above) that the events surrounding recertification of the complainant at Level 2E were not discriminatory. Consequently, although this initial part of the process may fall short of what might be considered best practice in terms of the LRC Code of Practice on Grievance and Disciplinary Procedures[7] the complainant has not advanced any evidence to enable me conclude that his disability was a factor influencing the decision.

5.13 From an examination of the evidence adduced I am satisfied that the complainant was subsequently afforded three opportunities to advance his case in terms of each step of the process. The complainant accepts that he did not raise his eyesight as an issue during the first and second parts of the internal process and states that he did not do so at the suggestion of Ms. S – a support person assigned to assist him under the respondent’s Employee Assistance Programme. The respondent (Ms. S) emphatically rejects this assertion. As I previously stated where there is direct conflict between the evidence of two people I must decide, on balance, which evidence I believe to be more credible. I have previously found that the complainant did not raise his eyesight issue with Mr. X or his colleagues who were his Peer Trainers at any time following his return to work. In addition, I note his direct evidence that he did not raise the matter during this period with any member of Management. Indeed, the only reference to his eyesight contained in this documentation is his comment in a document dated 1 October, 2010 to Mr. F where he states “I did have an LTA in August, 2009 to April, 2010 due to me losing my sight due to collapsing at home and hitting my head. I recovered from this and returned to work much earlier than expected….”I am therefore satisfied, on balance, that he continued with this approach even when threatened with the respondent’s Disciplinary Policy. I found Ms. S to be a credible witness who gave her evidence in a clear and forthright manner. In light of the foregoing I prefer the evidence of Ms. S over that of the complainant and find that he is mistaken in his assertion that he was advised not to make reference to his vision impairment as part of the first two stages of the appeals process.

5.14 The complainant states that he expressly raised his eyesight as an issue as part of the appeal to Mr. J. A copy of the appeal document was opened to me and I am satisfied that this was the case. Mr. J attended the Hearing and stated that he spoke with Dr. Z in this regard and was informed by Dr. Z that the complainant had been certified fully fit to resume work in April, 2010. He noted that the complainant had not previously raised his eyesight as an issue and had failed to take up the offer of reverting to OHD after his return. Mr. J added that consequently he was satisfied that the complainant’s disability had no bearing on the decision to terminate his employment and he upheld that decision. Having carefully considered the evidence adduced on this matter I am satisfied that Mr. J made all appropriate enquires to enable him reach the conclusion he did and in those circumstances it was reasonable for him to decide that the complainant’s disability was not a factor in his dismissal and consequently, I am of the view that the termination of the complainant’s employment does not amount to discrimination of him.

5.15 The complainant raised a number of other issues which he submits renders the process discriminatory and in the interests of completeness I will address them. The first is the assertion is that the respondent’s PIP process was not applied to him. The respondent states that this was not appropriate to the complainant as this is the first stage of addressing an employee’s performance and the complainant had gone beyond this given he was at Final Written Warning Stage. Again, whilst this may at first glance to be unfair the complainant has not adduced any evidence that this decision was motivated in any way whatsoever on his disability. The second issue concerns an assertion on the part of the complainant that colleagues were aware he was to be dismissed before he attended the meeting with Mr. X because Mr. X spoke with them. Mr. X did not address this in the course of his evidence. However, I am not satisfied that the complainant has adduced any credible evidence to support his assertion and consequently, that is what it remains. In Melbury Developments v Arturs Valpetters [8] the Labour Court held, when examining the probative standard required of a complainant, that “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.”. Consequently the complainant has failed to discharge the initial probative burden required of him as regards these issues and they cannot succeed.

5.16 Thirdly, the complainant states that Mr. X’s behaviour was informed by the fact that he believed the complainant had previously furnished (in April, 2006) negative feedback on him to Management. Mr. X rejected this stating the survey the complainant referred to was an anonymous one, that he had no knowledge of who had responded and that the matter had no bearing on his treatment of the complainant. Again I am satisfied that this merely amounts to an assertion on the complainant’s part which is insufficient to discharge the necessary burden of proof. Moreover, if I accepted the complainant’s evidence on this matter it could be viewed as a non-discriminatory motive for the alleged treatment of him by Mr. X in that any perceived action by him would be because of the negative feedback and not the complainant’s disability. The fourth issue concerns a comment made by Mr. F in the course of his written conclusions dated 11 October, 2010 (which is accepted) to the effect that the complainant had never received a promotion during his time with the respondent. I note that this error was promptly acknowledged and corrected by Mr. F when it was brought to his attention. In the circumstances I am not satisfied that this error could amount to unlawful treatment of the complainant contrary to the Acts. Finally, the complainant states that he sought to have legal representation present at the final appeal meeting with Mr. J and this was rejected. He adds that he was similarly denied to be accompanied by an advisor/independent colleague at the other meetings pertinent to his dismissal at that this impacted on his ability to advance his case. The respondent states that this is the practice which applies to all employees, that the complainant had formulated his appeal document with the benefit of legal advice and had the assistance of the HR Department throughout the process. It submits that the complainant was not therefore treated any differently to other employees in similar circumstances. The complainant was unable to identify any other employee who had been permitted legal or other representation at disciplinary meetings. Consequently, I find that the complainant has failed to establish facts from which an inference of discrimination arises in respect of this element of his complaint and it must fail. In summary, in light of my comments in paragraphs 5.11-5.16 I find that the complainant has failed to establish a prima facie case that that the manner in which his employment was terminated by the respondent amounts to discrimination of him on grounds of disability and this element of his complaint cannot succeed.

5.17 It is common case that following Mr. F’s initial decision to terminate his employment with effect from 11 October, 2010 he (the complainant) was not permitted to attend the respondent’s site pending the appeals process. The complainant argues that this amounts to less favourable treatment of him contrary to the Acts. The respondent states that this applies to all employees in similar circumstances. The complainant further submits that sometime between October, 2010 and May, 2011 the respondent issued stock options which he was entitled to avail of and that the failure of Mr. X to advise him of same constitutes less favourable treatment of him contrary to the Acts. The respondent states that a professional third party (details supplied) oversees and manages the stock options programme. It adds that Management have no role in the matter, that the relationship is a personal one between the professional third party and the employee and rejects the complainant’s assertion that the alleged treatment constitutes discrimination of the complainant. Having carefully considered these matters I find (in both instances) that the complainant has failed to establish a prima facie case of less favourable treatment on grounds of disability contrary to the Acts and both fail.

5.18 The complainant states that sometime in August, 2010 Mr. X approached him and asked if he (the complainant) would consider taking redundancy adding that he (the complainant) would receive a social security payment and could also perform “nixers” to supplement that income. The complainant further states that Mr. X had made a similar suggestion (over the phone) on approximately five occasions during his absence on sick leave and submits that this amounts to less favourable treatment of him on grounds of disability contrary to the Act. The respondent (Mr. X) emphatically rejected the complainant’s assertions. The respondent states that there were no redundancy packages, voluntary or otherwise, available during the period October, 2009 – September, 2010 and in any event that Mr. X would have no authority to make such a suggestion absent some formal arrangements approved by the respondent. In light of the foregoing I find it highly unlikely that Mr. X would suggest that the complainant examine redundancy as an option. Moreover, I am satisfied that following the complainant’s return to work in April, 2010 Mr. X was supportive of him. He organised Peer Trainers on request on two separate occasions and offered the complainant the opportunity to transfer elsewhere in the plant when it was clear to him (Mr. X) that the complainant was struggling with the recertification process. Therefore, I am of the view that had Mr. X made any reference to alternative avenues available to the complainant it could not be considered to amount to less favourable treatment of him contrary to the Acts. Consequently, this element of his complaint fails.

5.19 The complainant raises two other issues which he submits amount to discrimination and/or harassment of him on grounds of disability contrary to the Acts. In light of my comments at paragraph 5.4 above I will address these matters as if they were argued in the alternative. The first of these refers to his exclusion from an e-mail on 22 August, 2008 which was circulated to his colleagues by Mr. X. The respondent (Mr. X) accepts that the complainant was not included on an e-mail issue by him that day and adds that that this occurred because he required one of his more experienced Maintenance Technicians to chair a meeting for the team as he (Mr. X) was unable to do so. The complainant did not fall into this category. Moreover, other staff were excluded because they too did not have the necessary experience. I have examined this e-mail and I am satisfied that it was addressed to colleagues who were considerably more experienced that the complainant. Consequently, I find that the exclusion of the complainant was not connected to his disability and the treatment of him cannot constitute either discrimination or harassment of him on that ground contrary to the Acts. The second alleged incident refers to an occasion in June, 2009 when Mr. X requested the complainant to work additional hours despite Mr. X knowing that he required regular rest and meals due to his medical condition. The respondent (Mr. X) does not remember the alleged meeting in June, 2009. He states that it was not his practice to force any member of staff to work overtime and instead he would see if anyone was interested in it. He adds that usually staff were accommodating if the need arose. The respondent states a review of the complainant’s time records shows that he only worked overtime on a small number of occasions during the period 2005-2010. The complainant did not take issue with this. It appears to me that in the normal course of business occasions will arise which requires extra effort or attendance by staff. The complainant had not adduced any evidence to support an assertion that he was treated differently to any other employee in the circumstances. Moreover, it could not be said that the alleged treatment of him amounts to harassment of him on grounds of disability. In light of the foregoing I find that the complainant has failed to establish a prima facie case of (i) less favourable treatment and (ii) harassment on grounds of disability contrary to the Acts and both these elements of his complaint fail.

5.20 The complainant states that from his return to work in April, 2010 a number of colleagues (details supplied), along with Mr. X frequently made remarks to him about guide dogs and called him “blind Andrew” and he submits this constitutes harassment of him contrary to the Acts. In the course of the Hearing the complainant was unable to say when these incidents occurred. However, he later clarified that the “blind Andrew” comment was made on only one occasion and that it was made by Mr. P. The respondent states that it has a comprehensive Dignity at Work/Harassment Policy and this is circulated to all staff. It adds that the complainant did not, at any time relevant to this complaint, invoke the Policy by reporting the alleged behaviour of his colleagues from April, 2010 onwards. Section 14A(7) of the Acts defines harassment for the purposes of the legislation. Suffice it to say that the comment identified by the complainant would be covered by that definition. Whilst the Acts attach liability to an employer for the behaviour of its employees, it seems self-evident that before any such liability is fully fixed, the respondent is afforded an opportunity to remedy the situation. In order to do so it must be advised or at least have some knowledge of the impugned behaviour. A copy of the respondent’s Dignity at Work/Harassment Policy was furnished to me in the course of my investigation. The complainant confirmed that he was aware of its existence. He further confirmed that he never invoked this Policy at any stage in respect of the alleged harassment of him by his colleagues. The Policy provides for, inter alia, a formal complaints and investigation process in respect of allegations of harassment on any of the nine discriminatory grounds covered by the employment equality legislation by an independent investigator. In the circumstances I find it unreasonable for the complainant to make a conscious decision not to report the impugned behaviour to the respondent in accordance with the internal Policy and seek remedy elsewhere.

5.21 Moreover, Section 14A(2) of the Acts provides a defence to an employer where an employee alleges s/he has been subjected to harassment. The Labour Court has held that in order to avail of this defence an employer must have a Dignity at Work/Harassment Policy which is disseminated to staff[9]. I am satisfied that this is what happened in the instant case. Consequently, I find that if the complainant established a prima facie case of harassment (and I make no finding in that regard), the respondent would likely be able to avail of the statutory defence. In the circumstances I find that this element of the complainant’s case cannot succeed.

5.22 The complainant further contends that he was harassed by Mr. X on grounds of disability contrary to the Acts during the period he was on sick leave. Again, he did not raise these matters with Management at any time prior to the referral of his complaint to this Tribunal and my comments in the preceding two paragraphs equally apply here. However, in the interests of completeness I will address these matters so that the parties have a decision at first instance. The complainant states that Mr. X instructed him (within a couple of weeks of the commencement of his sick leave) that he was to submit his medical certificates into him on a weekly basis, although he refused to do so advising that he (the complainant) would furnish them on a monthly. The complainant further contends that whilst he (Mr. X) was not specific on how the certificates were to be sent to the respondent but the complainant believed he was required to deliver them by hand and this is what occurred initially. This arrangement continued for a while but then he began to send them by post. The complainant adds that as he was unable to drive due to his eyesight problems his father drove him to the respondent’s premises to hand deliver the certificates and submits this amounts to harassment of him. The complainant makes particular reference to one occasion when he arrived to deliver his medical certificate and was berated by Mr. X for disturbing him. Finally, the complainant contends that he had several telephone conversations with Mr. X during which he alleges Mr. X persistently asked him when he was resuming work. The complainant submits that these telephone conversations amount to harassment of him contrary to the Acts.

5.23 The respondent states that employees on sick leave are required to forward medical certificates covering any sick absence to their Manager in a timely manner. How this occurs is a matter for the employee to decide but there is no requirement for an employee to personally deliver medical certificates. Mr. X accepts that the complainant may have attended the plant with his father on occasion and that they could have been detained at the security but rejected the assertion that he berated the complainant for disturbing him when he met him on that occasion. The respondent (Mr. X) accepts that there were a number of telephone conversations between him and the complainant during the period the latter was on sick leave. It states that there were around twenty-five telephone contacts between them during the period September, 2009-April, 2010, a number of which were instigated by the complainant and that the remainder were for work related reasons which any reasonable and concerned employer would follow up on.

5.24 Section 14A(7) defines harassment as follows –

“(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds….

being conduct which…has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.”.

Having carefully considered the evidence adduced by the parties I am not satisfied that the behaviour complained of amounts to harassment. The respondent has offered credible, alternative non-discriminatory reasons for the number and content of the phones calls between the complainant and Mr. X. The complainant confirmed at the Hearing that Mr. X did not give him a direct instruction to hand deliver the medical certificates, rather it was his (the complainant’s) understanding that this was the situation. In addition, it appears to me to be perfectly reasonable for an employer to require medical certificates to be furnished on a weekly basis at the beginning of an absence and that the frequency required could decrease as the period of absence grew. Moreover, I note that the complainant decided not to comply with the alleged instruction of Mr. X and instead advised him he (the complainant) would furnish them on a monthly basis. In light of the foregoing I find that the behaviour complained of by the complainant does not amount to harassment of him contrary to the Acts and consequently this element of his complaint fails.

5.25 The final element of the complainant’s claim is that the respondent failed to provide him reasonable accommodation in accordance with Section 16 of the Acts and he details a numbers of measures which could have been afforded him. The respondent states that it complied with its obligations under the Acts and in doing so had full regard to the principles set out in Humphries v Westwood Fitness Club[10]. It further states that despite a number of invitations to revert to the OHD or any other member of Management if there were any issues, the complainant did not do so and submits that in those circumstances it was reasonable for it to assume he could perform his duties without impediment or the need for further measures or accommodations. It submits that absent this knowledge or request no further obligation attaches to it as regards reasonable accommodation and relies on the Decisions of this Tribunal in Healy v HSE West Area[11] and Mr. F v A Supermarket[12] in this regard.

5.26 The practical scope of the obligation on an employer to provide reasonable accommodation has been considered in an array of Determinations by this Tribunal and the Labour Court, most notably in the case of the latter in A Health and Fitness Club v A Worker[13]. The essence of that Determination is that an employer is obliged to make an informed and considered decision of what the employee’s capacity is in the circumstances and what accommodation is possible, reasonable and proportionate in that regard. In reaching any such decision the employers must involve the employee and his/her medical advisors and afford them the opportunity to influence the decision. In the instant case the respondent complied with this requirement and was in possession of a medical opinion from the complainant’s own Ophthalmic Specialist which certified him fit to resume duty without restriction, once he wore glasses and underwent regular vision tests. The respondent Occupational Physician concurred with this opinion. I am satisfied that the respondent is entitles to rely on these concurring opinions. The only condition it was required to comply with in the immediate term was the provision of prescription standard safety goggles for the complainant, which it arranged without delay. The complaint contends that these goggles were inadequate and that he raised this matter with Mr. X. However, as stated at paragraph 5.6 above I do not find the complainant’s evidence credible on this point. I am further satisfied, on balance, that the complainant did not raise the issue of reasonable accommodation with the respondent at any time subsequent to his return to work. In light of the foregoing I find that the respondent did not fail to provide him reasonable accommodation in terms of section 16 of the Acts.

6. DECISION OF THE EQUALITY OFFICER

I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find that:

(a) the complainant has failed to establish a prima facie caseof discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts;

(b) the complainant has failed to establish a prima facie caseof harassment on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts;

(c) the complainant has failed to establish a prima facie casethat the respondent dismissed him in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts;

(d) the respondent did not fail to provide the complainant with the required appropriate measures by way of reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008

and his complaint fails in its entirety.

_______________________________________

Vivian Jackson

Equality Officer

30 December, 2014

'Footnotes'

[1] [2004] 15 ELR 296

[2] DEC-E2011-080

[3] DEC-E2011-152

[4] EDA 0917 Melbury Developments v Arturs Valpetters

[5] EDA 122

[6] EDA 1124

[7] SI 146 of 2000

[8] EDA 0917
[9] See EDA915 and EDA 916

[10] [2004] 15 ELR 296

[11] DEC-E2011-080

[12] DEC-E2011-152

[13] EED 037