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INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : AN EMPLOYER REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. An appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Complainant appealed the Decision of the Equality Officer to the Labour Court on the 31st December 2013. A Labour Court hearing took place on the 8th May 2014. The following is the Court's Determination:
DETERMINATION:
This is an appeal by a worker (the Complainant) against the Decision of an Equality Officer in a claim alleging discrimination on the disability ground against his employer (the Respondent) where he alleged that he was discriminated against on the ground of disability, failure to provide him with reasonable accommodation and discrimination on the race ground contrary to the Employment Equality Acts 1998-2011 (hereafter the Acts).By Decision dated 20thDecember 2013 the Equality Tribunal held that he had not been discriminated against on the disability or the race grounds.
The Equality Officer in her Decision reported that a complaint of victimisation had been withdrawn at the Equality Tribunal hearing. However, at the appeal hearing before the Court, there were overlapping allegations of discrimination and victimisation on the same set of facts, therefore, at the outset of the hearing, the Court sought clarification on the claims before it. The Complainant confirmed for the Court that he was not pursuing a claim of victimisation under Section 74 of the Acts.
The Complainant referred a complaint under the Acts to the Equality Tribunal on 22ndSeptember 2011. He alleged that he was subjected to discriminatory treatment when the Respondent failed to remove him from his workstation after he reported difficulties due to his disability, ignored grievance complaints he made on 14thJune 2011, failed to apply the company grievance procedure in line with the Industrial Relations Acts and failed to keep adequate written records of its decision-making in connection with his complaint. He also claimed that he was discriminated against when he sought to resign from his trade union membership and was not permitted to do so by the Respondent.
Preliminary Issue – Trade Union Membership
The Court ascertained details of the nature of his complaint regarding his allegation of discrimination in relation to his membership of a trade union. On 13th June 2011 the Complainant informed the HR Department of his intention to end his membership of SIPTU. He stated that the Respondent would not accept his resignation from SIPTU and continued to deduct trade union subscriptionsfrom his wages against his will.
The Respondent stated that it was a requirement of all permanent employees to join SIPTU as it had a closed shop arrangement with the Union and no distinction was drawn on the grounds of race, gender and disability or otherwise. Hence the Respondent submitted that there can be no discrimination as alleged or at all.
The Complainant contended that the Respondent’s stance to support and impose a preferred trade union through an employment contract was unlawful and in defiance of several Supreme Court judgments, however, he accepted that it was not discriminatory on any of the grounds submitted in his claim. Accordingly the Court has no jurisdiction under the Acts to hear this complaint and finds that his complaint is not well-founded under the Acts.
Background – Discrimination on Disability and Race Grounds
Summary of the Complainant’s case
The Complainant is Nigerian and suffers from post-polio syndrome. He commenced employment with the Respondent on a temporary basis in September 2006 and was made permanentas a Manufacturing Process Operatoron 1stApril 2008.
On 21 April 2011 the Complainant approached his line Supervisor, (the Manufacturing Supervisor) requesting to see the Occupational Health Nurse as he was experiencing a pain in his leg as a result of standing while working on a new production cell. He had polio as a child and suffered problems with his right leg since then. This Consultation was set up for the following day.
The Occupational Health Specialist from Corporate Health Ireland examined the Complainant and in an email dated 22ndApril 2011 to the Manufacturing Supervisor reported as follows:-
- “…I carried out a clinical examination which confirms an imbalance in right leg. I am of the opinion that he has a genuine difficulty.
This gentleman would find it significantly easier if he had a job which would allow him to sit for some of his work task”.
The Complainant stated thatthe ManufacturingSupervisor acknowledged this email and copied it to the Senior HR Manager. However, the Complainant contended that he was kept on the line for a further five days without being informed of outcome of the Occupational Health Examination.On2ndMay 2011 he was moved back to his previous work location. Thereafter, he was required on a couple of occasions to cover for absent colleagues on the standing cell work location.
On 3rdJune 2011 as the Complainant was entering the production floor at the start of the evening shift, the Manufacturing Supervisor ushered him to the standing cell line with a hand signal from a distance of over 20 metres. The Complainant alleged that this act lacked courtesy and he considered it an act of harassment on the race ground. On the same day one of the Complainant’s colleagues was on her way to the Manufacturing Supervisor’s office to inform him that she wished to bank her overtime hours for that week (instead of being paid overtime pay). The Complainant asked her to make the same request on his behalf which she confirmed she did. When the Complainant's request was not granted and he was paid overtime for that week he alleged that this action by the Respondent was a further act of discrimination on the race ground.
Furthermore, the Complainant stated that he discovered inconsistencies in his performance ratings which he contended were purposely downgraded in order to negatively influence his overall performance rating. He told the Court that in 2009 his overall performance rating was 4 (“High Contributor”) from an average score of 3.75 out of 5 on a 5-point scale whereas in 2011 his overall performance rating was 3 (“Successful Contributor”) from an average score of 3.95 out of 5 on the same 5-point scale. This he contended was a further act of discrimination on the race ground.
The Complainant brought these matters to the attention of the Production Manager at the meeting on 14thJune 2011. He contended that the Production Manager displayed a lack of interest in carrying out an official internal investigation into the Complainant's complaints and failed to initiate the Company's grievance policy and procedure. By email dated 21stJune 2011 to the Senior HR Specialist he informed her that contrary to her opinion these issues“had not been closed out”.This was followed up with a meeting with the Senior HR Manager on 28thJune 2011 where the Complainant made a formal grievance complaint. The Complainant contended that this process was not impartial nor independent and that it did not comply with the general principles of natural justice and fair procedures. He said that on hearing his complaints the Senior HR Manager said the Complainant's expectations were too high and he was of the opinion that the Complainant was no longer happy working with the Company. A grievance outcome report was furnished from the HR Department on 7thJuly 2011. The Complainant stated that this report did not cover all the issues raised. Instead he was accused of not following normal procedures by first raising the issues with his Supervisor. The Complainant alleged that the Respondent failed to follow its grievance procedures and that, when compared with a nominal Irish comparator, he was treated less favourably.
Summary of the Respondent’s Position
Mr John Brennan, Ibec, on behalf of the Respondent, denied the Complainant’s complaints in full.
Mr Brennan said that on 28thMarch 2011 the Manufacturing Supervisor called the Manufacturing Operators (including the Complainant) together in a manufacturing meeting room to announce that the first “U-shaped cell” was to commence in two weeks. Due to the operations involved, the most versatile and reliable Operators were chosen for initial cells including the Complainant. During the meeting the Manufacturing Supervisor announced the names of the Operators chosen to fill the work-steps in the cell and told them in front of their peers that if for any reason they felt they could not complete the task they should contact him after the meeting in private. The Complainant did not approach him.
U-shaped cell operations involve Operators being trained on all or most of the worksteps required to manufacture a device. Operators of the cell move between worksteps and it involves standing and walking.
A two-week training period was necessary for the new operation and this took place between 28thMarch 2011 and 8thApril 2011.
On 21stApril 2011 the Complainant approached his Manufacturing Supervisor requesting to see the Occupational Health Nurse as he was getting a pain in his leg. He did not request to be moved from the cell. The Manufacturing Supervisor suggested that he should be medically assessed by the Company's own Occupational Health Unit and this happened on 22ndApril 2011. The Occupational Health Specialist reported back to the Manufacturing Supervisor. This stated that he should not work in a standing role in a production cell on an ongoing basis and furthermore that he was in no immediate danger from working in the cells.
The Manufacturing Supervisor checked with the Occupational Health Specialist to establish if the Complainant should be moved immediately. The response was that this was not what was required but rather if an opportunity arose then he should be moved from a role that required him to stand or walk for a full shift. The Respondent submitted that there was nothing unusual in this in that he had already spent three weeks in such a role without raising an issue.
The Respondent submitted that the three occasions in two months where he was requested to cover for absent colleagues was not inconsistent with the medical advice available and this point was included in the Senior HR Manager’s report dated 7thJuly 2011 when the Complainant formally raised the issue at a Stage Three Grievance Meeting held on 28thJune 2011.
The Manufacturing Supervisor told the Complainant that it would be a week or so until he could be moved from the cell to a seated role as it was necessary to replace him on the cell in order for it to operate properly and therefore it had to firstly train up someone else to replace him. He told the Court that there were no replacements ready at that time as it was a new operation.
With reference to the banking of overtime hours the Manufacturing Supervisor was not at his desk when the Complainant’s colleague left messages about the banking of overtime and that he did not see the note regarding the Complainant’s request to bank his overtime hours.
The Manufacturing Supervisor had an arrangement whereby each week Operators were required to speak to him before the break on Monday afternoons if they required overtime hours to be banked rather than paid as he signs off the timecards during the break period. He said that he never received the note from the Complainant and accordingly proceeded to sign him off for overtime payment.
With regard to the processing of the Complainant’s grievances, Mr Brennan outlined the procedure whereby the Complainant sent an email on 16thJune 2011 to the HR Department in relation to his request to cease trade union deductions. The Senior HR Specialist replied on 17thJune 2011 setting out the Company's position. He replied on 20thJune 2011 and further correspondence ensued from HR on that same day directing him to use the Company’s grievance policy. He replied on 21stJune 2011 stating that he had already invoked Stage One(“I had an informal discussion with the shift manager”)and Stage Two(“I have brought it to your attention (HR); you referred me to SIPTU; I replied that I can’t deal with SIPTU on an agreement I was not a party to”)and now wished to apply for Stage Three of the process and meet with the Senior HR Manager on the matter.
The Complainant replied to the Senior HR Specialist on 27thJune 2011 stating that he had referred the matter of his wish to resign his trade union membership directly to SIPTU, however, he informed her that if he didn't get a response by 29thJune 2011 he would then refer the matter to the Equality Tribunal.
Mr Brennan said that the Complainant met with the Senior HR Manager as planned on 28thJune 2011and he furnished the Court with a copy of the grievance outcome report of that meeting. Mr Brennan stated that what was clear from that report was that there were two issues to be dealt with, namely, the medical issue that had since been resolved and his wish to withdraw from trade union membership.
The Senior HR Manager told the Court that he could not identify any on-going or outstanding issues which required action and when the Complainant himself was asked at the meeting could he identify any further action that the Company could take, he could not. This report of the Stage Three Grievance was signed by both parties on 7thJuly 2011.
Findings of the Court
The Court has considered the submissions of both parties and the witness testimony given at the hearing. The Court took testimony under oath from the following:-
The Complainant
The Manufacturing Supervisor
The Senior HR Generalist
The Senior HR Manager
Discrimination on the Disability GroundThe Complainant complained that he was discriminated against on the disability ground in breach of the terms of Section 6(2)(g) and in contravention of Section 8 of the Acts.
It is not disputed that the Complainant had a disability. The Complainant claimed that in not removing him from the U-shaped cell and providing him with reasonable accommodation for five days the Respondent was in breach of the Act.
Section 6(1)(g) of the Acts provides that discrimination on the disability ground occurs where a person with a disability is treated less favourably than a person without a disability or a person with a different disability.
Section 16(3)(a) of the Acts in effect provides that a person with a disability is not to be regarded as other than fully capable of carrying out the duties of a post if, with the assistance of special treatment or facilities, they would be fully capable of carrying out those duties. Section 16(3)(b) then goes on to impose an obligation on employers to do what is reasonable to provide such treatment or facilities. It is clear from the Acts as a whole that a failure to provide reasonable accommodation in accordance with this Section does not, in or of itself, constitute discrimination. Discrimination, for the purpose of the Acts, is defined by Section 6. That definition does not include any reference to a failure to fulfil the duty imposed by Section 16(3). Furthermore, there is nothing in the Acts which gives an independent cause of action for an employer’s failure to provide special treatment of facilities in accordance with that Subsection.
The general principles regarding the application of Section 16 (3) of the Acts are set out inNiamh Humphries v Westwood Fitness Club[2004] 15 E.L.R. 296 which require an employer to make abona fideand informed decision concerning a disabled employee’s capabilities before concluding that he or she is unable to perform the duties of their employment. The test is an objective one to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability. It requires the employer to fully and properly assess medical evidence.
The Court is satisfied that the Respondent imposed no detriment on the Complainant due to his disability. The Complainant had been employed by the Respondent for six years before he was moved with his approval to the U-shaped cell. At that point no issues had ever been raised regarding his disability either by the Respondent or the Complainant. His work was highly regarded and there were no issues with his employment. As soon as the Complaint raised the issue of his disability on 21stApril 2011 the Respondent acted with urgency and referred him to an Occupational Health Specialist.
The report from the Occupational Health Specialist confirmed that he had a genuine difficulty working on the U-shaped cell and indicated that he would find it significantly easier if he had a job which would allow him “to sit for some of his work tasks”.The Court is satisfied that the Respondent acted in a prompt manner in setting about training a replacement for him on the cell and he was removed from that position after five working days.
The medical report, while conclusive on his diagnosis, did not suggest that there was an immediate need to remove him.
In all the circumstance of this case the Court is satisfied that the Complainant was not discriminated against because of his disability by the Respondent requiring him to work an extra five days in the U-shaped cell while a replacement was being trained.
Therefore, the Court finds that the Complainant is not entitled to succeed in his claim of discrimination on the disability ground.
Discrimination on the Race Ground
The gist of the Complainant’s allegation of discrimination on the race ground is that he was subjected to discriminatory treatment when the Respondent ignored/failed to deal with the grievances he raised.
The Court notes that his grievance concerning his wish to resign from the trade union was dealt with promptly and efficiently by the Respondent. The Company’s policy regarding its closed shop arrangement with SIPTU was explained to him and it was suggested to him that he contract his trade union official and the matter progressed up each stage of the Respondent’s grievance procedure culminating in Stage Three.
With reference to the Complainant’s complaint of discriminatory harassment on the race ground where on one occasion on 3rdJune 2011 the Manufacturing Supervisor “beckoned” to him on the shop floor. The Manufacturing Supervisor in his evidence to the Court said that the shop floor is very large and very noisy. He accepted that he did “beckon” to the Complainant from a distance of approx. 20 metres in order to indicate where he was to go when he saw him arriving for his shift.
In relation to the Complainant’s difficulties with his rating in the performance appraisal in 2011 the Manufacturing Supervisor informed the Court that overall rankings were computer generated and depended on the weightings of each score. There were six areas scored out of 5 marks:-
- •Quality Focus
•Result Orientation
•Adaptability & Versatility
•Time Keeping & Attendance
•Interpersonal Effectiveness
•Commitment to Core Business
The Manufacturing Supervisor said that said that“Time Keeping & Attendance”scores were automatically registered from the clocking-in system, therefore, as Assessor for the performance scheme, the Manufacturing Supervisor input the five other scores and the computer generated the overall ranking figure. He said that the calculations generated by the computer depended on the weightings. At no point were average marks ever calculated. He said that the system applied in the same manner for all employees and was a“forced distribution system”(Bell Curve). In 2009 the Manufacturing Supervisor present at the time input five scores for the Complainant, as follows:
2009
- Quality Focus 3
Result Orientation 4
Adaptability & Versatility 4
Interpersonal Effectiveness 3
Commitment to Core Business 3
Overall ranking4
- 2011
Quality Focus 4
Result Orientation 4
Adaptability & Versatility 4
Interpersonal Effectiveness 3
Commitment to Core Business 3
Overall ranking3
Having considered the three areas which the Complainant complained of under the Respondent’s grievance procedure and which the Complainant contended were discriminatory in themselves the Court can find no causal link to the Complainant’s race for any of the complaints made. In any event, the Court is satisfied that rational and reasonable explanations were given for the request to bank his overtime hours, (the post-it note which his colleague left on the Manufacturing Supervisor’s was not seen by the Manufacturing Supervisor) and in any event he did not lose out on a benefit for the overtime worked. While beckoning to the Complainant on the shop floor could be discourteous, it does not raise an inference of discrimination on the race ground.
The Complainant also complained that the application of the grievance process itself was discriminatory on the race ground. He alleged that he was subjected to discriminatory treatment when the Respondent ignored his complaints, failed to deal with his grievances, failed to apply the company grievance procedure in line with the Industrial Relations Acts and did not keep or present adequate written records of their decision-making in connection with his complaint.
The Court notes that in his email to the Senior HR Specialist dated 21stJune 2011 the Complainant accepts that he has been through Stage One and Stage Two and sought to process his grievance through Stage Three. This latter stage occurred on 28thJune 2011 when he met with the Senior HR Manager.
In his evidence to the Court the Senior HR Manager stated that as the Complainant was not represented by a trade union representative at this meeting he decided to bypass the normal procedures. Therefore he met with the Complainant on his own to try and bring about a resolution to the Complainant’s difficulties. The report of that meeting states that the “Nature of Grievance” related to the following two items:
- (1)[the Complainant] has medical issues which prevent him from working in the cell it took 5 working days to move him from the cell
(2)[the Complainant] does not wish to be a member of a Union
Based on the evidence given and on the report of the final stage of the grievance procedure the Court is of the view that if there was any difference in treatment it was because the Complainant did not wish to have the standard format of trade union representation which was available to him and the Respondent facilitated him in this regard and not because of his race.
Conclusion
Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no established category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.
Determination
The Court is satisfied that the Complainant has failed to establish any facts from which discrimination may be inferred. Accordingly, he cannot succeed.
Accordingly, it is the Determination of the Court that the within appeal is disallowed and the Decision of the Equality Officer is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
11th June, 2014.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.