DEC-E2014-072

Equality Officer’s Decision No: DEC-E/2014/072

Parties

Miaskiewicz

(Represented by Kancelaria Solicitors)

-v-

Tesco Ireland Ltd

(Represented by IBEC)

File No: EE/2011/588

Date of issue: 3 November, 2014

Headnotes: Employment Equality Acts 1998- 2011 – sections 6,8,16 and 74 – discriminatory treatment – discriminatory dismissal – victimisation – reasonable accommodation - disability

1. DISPUTE

This dispute involves a claim by Mr. Michal Miaskiewicz (“the complainant”) that he was (i) discriminated against by Tesco Ireland Ltd (“the respondent”) on grounds of disability and race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts, (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of disability and race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts; (iii) victimised by the respondent contrary to section 74(2) of the Employment Equality Acts, 1998-2011and (iv) was dismissed by the respondent in circumstances amounting to victimisation contrary to section 74(2) of the Employment Equality Acts, 1998-2011. The complainant also claims that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2011. The respondent rejects the complainant’s assertions in their entirety.

2. BACKGROUND

The complainant was employed by the respondent as a Warehouse Operative from November, 2007 until July, 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, 1998-2011 and that his employment was terminated in July, 2011 in circumstances amounting to discrimination and/or victimisation 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 suffered an injury to his back in October, 2010. The complainant referred a complaint under the Employment Equality Acts, 1998 - 2011 to the Equality Tribunal on 11 August, 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 2 May. 2013 - the date it was delegated to me. Submissions were received from both parties and a Hearing on the matter took place on 24 May, 2013, 18 June, 2013 and 4 October, 2013. At the outset of the first day of Hearing the complainant’s representative withdrew all aspects of his client’s claim based on the race ground. 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. 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 a Warehouse Operative at its Distribution Warehouse in Dublin in November, 2007. He adds that the role is a varied one and can be broken into a number of particular tasks as follows:

• Picking or Order Picking – where an employee is required to fill a client order by collecting a number of specified items from various locations in the warehouse , place them in a “cage” or “combi” on castor wheels and when the order is complete take the “cage/combi” to the goods-out area. The complainant states that this is the most manual and physically demanding job a Warehouse Operative performs.
• Replenishing – where a pallet from which pickers collect in filling orders is almost empty a full pallet must be taken down from a higher level (“rack”) to replace the depleted one in the designated location. Any stock remaining on the depleted pallet must be placed manually on the new pallet. The impact of the manual level of the role is dependent on the weight of the stock involved.
• Put-away - where an employee uses a forklift truck to move pallets of stock from the good-in area to the appropriate rack.
• S-Dock – where an employee move a full pallet of stock from the rack to the goods-out area.
• Bond – work similar to replenishing but restricted to items which have “duty” applied to them. However, generally only full pallets are moved and there are few leftover pallets to be moved manually.
• Pallet Clearing – collecting empty from around the warehouse and returning them to designated areas. This task is performed using a forklift.
• Battery Bay – where an operator removes a battery from a forklift or a low-loader pallettruck and replaces it. The battery is replaced using a small gantry crane.

The complainant states that during the course of his employment he performed all of the above duties, as necessary, except the work in Battery Bay. He adds that only two named employees performed work in that area and confirms that they also did other tasks appropriate to a Warehouse Operative such as Picking and Forklift duties. The complainant states that all Warehouse Operatives perform the full range of tasks (except Battery Bay) as necessary.

3.2 The complainant states that he injured his back on 2 October, 2010 and was certified unfit for duty as a result of this injury by his General Practitioner (GP) until 5 April, 2011. He adds that he attended his GP on 4 April, 2011 and was certified fit to resume work from the following day. However, his GP advised that he should avoid heavy lifting over 10kg. The complainant states that he attended work on 5 April, 2011 and spoke with Ms. A, who is a member of the respondent’s HR Department. He adds that in the course of this meeting Ms. A informed him that the respondent did not have light duties in the warehouse and given his GP’s certification that he was only fit for such activity he was not permitted to resume duty. The complainant states that he attended a “Welfare Meeting” at the respondent’s premises on 8 April, 2011. The respondent was represented by Ms. B the HR Manager. In the course of the Hearing the complainant accepted that the minutes of this meeting (which were furnished to the Tribunal) accurately reflect what occurred at the meeting – primarily that the respondent did not have light duties available and that he was only able to perform such duties as per his GP. He added that he was unable to attend any of the subsequent meetings the respondent requested (through a number of letters) him to attend because he was unaware of them – as he was in Poland during February/March, 2011.

3.3 The complainant states that after the meeting on 8 April, 2011 he was of the view that the respondent did not want to accommodate him by assigning him light duties and he wrote to Ms. B on 11 April, 2011 asking that she reconsider the decision that light duties were unavailable. He states that he considered duties such as the battery bay, forklift driving, put-away, pallet clearing and s-dock to be light duties and therefore suitable for him and he suggested these to the respondent as possible tasks that he could be assigned to. In the course of the Hearing he rejected the proposition advanced by the respondent’s representative that these tasks were heavy duties and stated that they mostly comprised driving a forklift truck, which he was competent to do. The complainant states that he received a reply (to his letter of 11April) from Ms. B on 26 April, 2011 wherein she re-affirmed that light duties were not available at the warehouse and proposed a number of options as follows: (i) a reduced working week, (ii) a reduced working day, (iii) a reduced PI target, (iv) rotation of job skill or (v) a phased return to work programme including all, or some, of the aforementioned adjustments. He adds that the letter asked him to discuss the options with his GP and invited him to a meeting on 29 April, 2011 to discuss issues surrounding his return to work. In the course of the Hearing the complainant initially stated that he discussed the options set out by the respondent with his GP, although he was vague when this occurred and that she advised that all were unsuitable except rotation of skills, as she did not know what this entailed. However, he subsequently stated in response to a question from the respondent’s representative, that he did not discuss these matters with his GP. The complainant added that he discussed these options with Ms. B at the meeting on 29 April, 2011but he got no real clarification on what was involved and he wrote to the respondent on 3 May, 2011 seeking clarification of why he had not been permitted to resume work and what the respondent required of him at that stage, stating that he was extremely confused.

3.4 The complainant states that he received a letter dated 6 May, 2011from the respondent (Ms. B) restating the options previously set out in her letter of 26 April, 2011 and requesting that he attend the respondent’s Occupational Health Advisor on 10 May, 2011. The complainant adds that he replied by letter dated 9 May, 2011 advising that he was in Poland from 10-21 May, 2011 for physiotherapy and was not therefore available to attend the appointment. He further states that he re-iterated his request for light duties in this letter and set out the tasks which he believed did not require lifting and were therefore suitable for him in terms of his medical advice. The complainant states that the appointment with the respondent’s Occupational Health Advisor was re-scheduled for 31 May, 2011 and he attended same. He adds that this assessment concluded that he was fit to resume work on full duties on the graded programme (reduced PI target) previously set out by the respondent. The complainant states that he had a “Welfare Meeting” with his Line Manager (Mr. X) and Ms. A on 1 June, 2011. He states that in the course of this meeting Ms. A advised him that as his GP had originally certified him as unfit for work, s/he would have to certify that the complainant was now fit to resume duty. The complainant adds that he was also requested to discuss the options previously set out by the respondent with his GP and replied that the options were vague. He states that Ms. A responded that the options were vague “so they can be tailored to suit each individual’s particular needs” and that his GP “needs to decide what combination would be good for you”. The complainant states that he attended his GP on 2 June, 2011 and obtained a medical certificate which stated as follows “Michal is suffering from lower back pain. He is fit to return to work, but needs special training to do his job”.

3.5 The complainant states that he enclosed this medical certificate with a letter dated 3 June, 2011 to the respondent. He adds that in this letter he sets out the types of work the training referred to in the certificate was required for – e.g. Battery Bay and Bond. In the course of the Hearing he confirmed that he had suggested to his GP that the work in these areas was suitable for him, given his back complaint. The complainant states that he had a further “Welfare Meeting” with Mr. X and Ms. B on 10 June, 2011. He adds that at this meeting Ms. B expressed concern at the contents of the GP’s medical certificate, in particular the comment that he required special training in order to return to work. He further states that Ms. B read out the report of the respondent’s Occupational Medical Advisor and he was informed that despite his GP’s suggestion that he be assigned other duties, the only option the respondent was willing to consider in terms of his return to work was on a graded basis which included reduced performance targets but required him to carry out the full range of tasks relevant to his grade and role. He adds that Ms. B advised him that the respondent was concerned about his GP’s certification and requested that he return to his GP and obtain a certificate which certified him fully fit to return to work.

3.6 The complainant states that he got a medical certificate from his GP on 10 June, 2011stating he was fit to resume duty but that he required a manual handling training course. He adds that he resumed duty on 14 June, 2011 and received the manual training course, along with refresher training on the forklift truck. He states that under the “Programme” he resumed duty on the full range of duties associated with his role but commenced at 65% of the standard rate (PI) for the first week. He adds that this rate increased by 5% each week until he reached the standard rate. He accepts that he agreed this Programme with Mr. X but that he only did so because if he did not he would not be permitted to return to work. The complainant states that when he resumed his regular duties “picking” the first three assignments he received involved lifting heavy objects. In the course of the Hearing the complainant stated that whilst these assignments are relayed electronically to a hand-held device (known as an “AMT”) he asserted that Mr. X and another Manager (Mr. G) had manually overwritten the computer system to deliberately assign him these tasks. When pressed he confirmed that he had no evidence of this and that it was an assertion on his part. In support of this assertion the complainant introduced Mr. P as a witness. The witness stated that he had worked in the respondent’s premises in Donabate since 2008 and had worked on the computerised order system operated in the warehouse since then. He added that the computerised system can be manually overwritten to assign specific tasks to specific employees. In response to a question from the respondent’s representative the witness stated that he had never seen either Mr. X or Mr. G do so and confirmed that they had never asked him to perform such an operation.

3.7 The complainant states that he continued to perform “picking” and forklift duties for the next couple of weeks (although his time was spent 90% picking) and he met with Mr. X on 28 June, 2011 to discuss his performance since his return to work (which is called a Development Meeting). The complainant states that the time allocated to perform particular tasks was too short and consequently he was unable to reach the agreed target of 65% for “Picking” although he exceeded the PI for Fork Lift Driving. In the course of the Hearing the complainant confirmed that the notes of this meeting (which were opened to the Tribunal) accurately reflected what occurred. The complainant states in the course of his shift on 4 July, 2011 he was instructed to pick an item from the storage area by Mr. G in a manner which he (the complainant) considered to be contrary to health and safety regulations. He adds that he reported this matter to the Shift Manager (Mr. D) who informed him to disregard the instruction and to follow the regulations in such a scenario. The complainant states that immediately after this incident he was assigned orders which involved heavy items and asserts that Mr. G overwrote the computer system to achieve that outcome. It is submitted that this amounts to victimisation of him contrary to the Acts.

3.8 The complainant states that he had a further Development Meeting with Mr. X on 6 July, 2011. He adds that during this meeting Mr. X advised him that he had not reached the target of 70% of the standard rate for “Picking” as per the Return to Work Programme (although he again exceeded the agreed target for Fork Lift Driving) and the complainant replied that it was not possible for him to achieve those targets and abide by health and safety requirements and cited the previous incident with Mr. G by way of example. In the course of the Hearing the complainant confirmed that the minutes of this meeting (which were opened to the Tribunal) accurately reflected what occurred. The complainant notes that Mr. X agreed to source training for him to enable him reach the targets contained in the Programme and states that he was given some training by the Health and Safety Officer (Mr. L) two days after the meeting. The complainant states that the training was poor – it was inconsistent with aspects of the manual handling course he had completed a few weeks earlier and that whilst he expected it to be for the shift, Mr. L departed after two assignments. In the course of the Hearing the complainant stated (i) that he did not report his concerns over Mr. L to Mr. X or any other member of Management and (ii) that he did not seek to renegotiate the targets contained in the Return to Work Programme despite the fact that he had failed to reach the targets on two separate occasions.

3.9 The complainant states that on the morning of 9 July, 2011 he was called (over the warehouse public address system) to a meeting with Mr. X in his office. The complainant adds that he logged out of the computer system – which meant he was not available for work temporarily - and went to attend the meeting. He states that before he got to the office he met Mr. X in the corridor and he (Mr. X) informed the complainant that he was being “flexed down” (i.e. his working hours were to be reduced) due to his poor performance. It is submitted on the complainant’s behalf that this amounts to less favourable treatment of him on grounds of disability contrary to the Acts. The complainant states that he asked Mr. X if he had the authority to make this decision and was informed he did, adding that if he (the complainant) reported for duty other than for the reduced number of shifts he would be sent home. The complainant states that he was aware from the respondent’s Staff Handbook that he was entitled to a meeting and went about securing a witness to attend the meeting with him – which was permitted by the process in the Staff Handbook. He adds that while he was waiting for his witness to arrive he went to Mr. X’s office to advise him that he (the complainant) was ready to attend the meeting Mr. X told him there would be no meeting. The complainant states that he was confused at this stage and again asked for a meeting, which Mr. X refused. He further states that during this period he was in the hallway outside Mr. X’s office and rejects the assertion that he was in any way abusive or threatening towards Mr. X. The complainant also rejects the assertion that the interaction between him and Mr. X was witnessed by another employee (Mr. K). The complainant accepts that he used his mobile phone whilst he was standing in the hallway – which is not permitted – and that when he was challenged by Mr. X in this regard he told him he was on the phone to his lawyer. In the course of the Hearing the complainant confirmed that this was untrue and he had been on the phone to a friend.

3.10 The complainant accepts that he was subsequently instructed by Mr. X to return to work and that he refused to do so. He rejects the respondent’s assertion that he received this instruction on three separate occasions and states that it was only once. The complainant states that Mr. X then stated that if he (the complainant) “wanted a meeting, you can have a meeting” and he subsequently attended a Disciplinary Meeting with Mr. X (Mr. G attended as a notetaker and the complainant was accompanied by a colleague Mr. F). The complainant states that at this meeting Mr. X suspended him with pay for refusing to obey an instruction to return to work, pending a formal investigation of the incident. Mr. F attended the Hearing and confirmed that the reason Mr. X gave for the suspension was because he (the complainant) had refused to return to work having received an instruction to do so on three separate occasions. The complainant states that he refused to sign the minutes of this meeting because they were inaccurate in terms of the alleged incident. In the course of the Hearing the complainant stated that on the day he was fully aware that he was being suspended for his failure to obey Mr. X’s instruction to return to work. He added that the issue of him being “flexed down” was not discussed at this meeting,

3.11 The complainant states that he was requested to attend a meeting (pursuant to the respondent’s Disciplinary Policy) on 12 July, 2011. He adds that this Meeting was conducted by Mr. D and he (the complainant) was accompanied by a colleague. The complainant states that the minutes of this meeting (which were opened to the Tribunal) accurately reflect what happened on the day except for one comment attributed to him. The complainant further states that he was requested to attend a second meeting by Mr. D on 14 July, 2011 and did so accompanied by the same colleague. The complainant again accepts the accuracy of the minutes of this meeting (which were opened to the Tribunal) and states that this meeting was adjourned because he presented Mr. D with a medical certificate stating that he was unfit for work from 14 – 20 July, 2011. He states that Mr. D wrote to him the following day advising that the respondent (Mr. D) had decided that there were grounds to proceed to a Disciplinary Hearing in respect of the incident on 9 July, 2011 and requesting that he (the complainant) attend an appointment at the respondent’s Occupational Health Advisor on 19 July, 2011. The complainant adds that he attended this appointment and was certified fit to resume duty on the date previously advised by his GP. He further states that he attended the Disciplinary Meeting on 22 July, 2011 and confirms that the minutes of this meeting (which were opened to the Tribunal) are accurate. The meeting was chaired by Mr. K (the Operation’s Manager) and the complainant was accompanied by a colleague. He adds that a further Disciplinary Meeting took place on 25 July, 2011 when he was informed by Mr. K that the respondent had decided to terminate his employment with immediate effect.

3.12 The complainant states that this decision was confirmed to him in writing by letter dated 26 July, 2011 and he was advised of his right of appeal. He adds that he exercised this right of appeal immediately and an Appeal Meeting was scheduled for 16 August, 2011. He states that these arrangements were unsuitable for him, as was the alternative date mentioned (23 August, 2011) and that the Appeal Meeting eventually took place on 16 September, 2011. The complainant adds that the appeal process was conducted by Mr. R, Senior Project Manager and he (the complainant) was accompanied by the colleague who had accompanied him previously. In the course of the Hearing the complainant stated that the minutes of this meeting (which were opened to the Tribunal) accurately reflected what occurred. In addition he stated that he had made several complaints of a health and safety nature to Management in the warehouse and that these issues were to the forefront of his appeal. He was unable to offer any explanation why his appeal documentation contained no reference to his disability or his allegations of discrimination. The complainant states that the decision to terminate his employment was upheld and he was advised of same by letter dated 9 November, 2011. It is submitted on the complainant’s behalf that his dismissal amounts (i) to discrimination of him on grounds of disability contrary to the Employment Equality Acts, 1998-2011 or in the alternative (ii) to victimisation of him contrary to section 74(2)(a), (c) and (f) of those Acts. It is further submitted that the complainant’s request for reasonable accommodation in April, 2011 is the “protected act” in terms of that section.

3.13 The complainant submits that the actions of the respondent in refusing to assign him light duties amounts to less favourable treatment of him on grounds of disability. In this regard the complainant introduced a former colleague (Mr. Z – who was also a Warehouse Operative) who suffered a back injury in 2010 and was absent from work for just over a year. Mr. Z attended the Hearing and gave evidence on his experiences with the respondent on his return to work in late 2011. He stated that his doctor had certified him fit for light duties only. He was unable to say who was at his “Return to Work” meeting in October, 2011. He added that he returned on a three day week and was assigned to “picking” duties from the outset however, he only picked light products. He stated that he performed this type of duty for two weeks and then he returned to full duties on a full week attendance pattern. He continued to perform this type of work until his employment with the respondent ceased on 13 December, 2011. In response to a question from the respondent’s representative Mr. Z stated that when he was on “picking” during this period he used the standard AMT handset which all Warehouse Operatives used when performing those tasks.

3.14 The complainant submits that the respondent refused to afford him reasonable accommodation from April, 2011 when his GP had certified that he was only fit for “light duties”. Instead it would only permit him to return to work in circumstances where he could perform the full range of duties associated with the grade of Warehouse Operative, albeit on a graded basis. It is submitted on his behalf that section 16(3) of the Employment Equality Acts, 1998-2011 places a positive duty on the respondent to provide reasonable accommodation and that in the instant case it failed to discharge that obligation. It is further submitted that the respondent failed to adequately assess the complainant’s needs and rejected the suggestions advanced by the respondent in terms of that accommodation, even for a short period of time. Finally, it is submitted that given the scale of the financial resources available to the respondent it cannot avail of the statutory defence that the provision of the reasonable accommodation would give rise to more than a “disproportionate burden” on it.

4. SUMMARY OF RESPONDENT’S CASE

4.1 The respondent rejects the complainant’s assertions in their entirety. It accepts that (i) the complainant was employed as a Warehouse Operative at its Distribution Centre in Donabate from November, 2007 (initially as an agency worker) until his employment ceased in July, 2011, when he was dismissed for serious misconduct pursuant to the company Disciplinary Procedure and (ii) the tasks detailed by the complainant are ones which an employee at that grade would regularly perform, once the employee had the appropriate training. The respondent adds that the complainant’s contract of employment provides that he would be assigned a minimum of 22.5 hours per week on a rotational shift basis over seven days on a twenty-four hour cycle. It further accepts that at the time relevant to the complaint (April, 2011 – November, 2011) the complainant had a disability in terms of section 2 of the Employment Equality Acts, 1998-2011. By way of background the respondent (Mr. D) set out the Warehouse Process Operations. The respondent states that the approximately half of the work involved in the warehouse is “picking”, about 25% involves work with a forklift truck and the remainder comprises, inter alia, the tasks detailed by the complainant. Mr. B states that on an average day there are forty-eight pickers and twenty forklift operators on shift. The respondent confirms that it is possible to move Operatives around (from one task to another) during the course of a shift but adds that any atypical issues are foreseen and are provided for by the Planning Manager whose role is to ensure the appropriate number of suitably skilled Operatives are on a particular shift. The respondent (Mr. B) adds that the Collective Agreement dated September, 2006 between the respondent and the trade union representing the Operatives (SIPTU) provides that Operatives are fully flexible across the full range of roles and that they rotate between the various tasks and not engage in one task excessively or exclusively. He adds that the Operatives’ skills need to be honed and maintained on a daily basis, particularly as regards forklift truck driving and this is one of the reasons why the Collective Agreement provides for staff flexibility. The Shift Manager is responsible for assigning staff to initial roles/tasks at the outset of a shift as necessary so as to ensure the effective operation of the warehouse.

4.2 The respondent (Mr. B) states that the order picking system is fully computerised and automated – staff “picking” collect an AMT and cage, log onto the AMT and scan the cage. The system then assigns the Operative with the next order which requires “picking”. The AMT directs the Operative to the correct location of each item to be picked and when the order is complete the Operative brings the cage to the loading bay, signs off and the system then assigns the Operative the next order. The respondent adds that this automated/computerised order system is operated in thirty of its depots in Ireland and the UK. It is accepted by the respondent that it is possible to overwrite the computer system but adds that this is only done in very specific circumstances and that neither Mr. X nor Mr. G would have the technical knowledge to do so. The respondent adds that overwriting the system for reasons outside those permitted would be a serious matter and would give rise to disciplinary action.

4.3 The respondent states that it operates standard performance targets for all Operatives who work at its warehouse in Donabate. It adds that these targets or performance indicators (PI’s) were developed by independent consultant industrial engineers after extensive observation and work studies, having regard, inter alia, to standards set by the International Labour Organisation and the British Standards Institute. The respondent adds that a standard of 84PI is the minimum performance standard acceptable in the normal course and it applies to all Warehouse Operatives. It adds that this minimum standard forms part of the 2006 Collective Agreement with SIPTU and is reviewed every 2/3 years. The last review was done in 2011, the minimum standard was retained and it was signed off by SIPTU. The respondent adds that staff who fall below this minimum standard are provided with a training plan to assist them achieve it and if, having completed the plan an employee still fails to meet the standard, the respondent arranges a meeting to discuss the matter further. It adds that this process is agreed with SIPTU and applies to all staff. It adds that at the time of the Hearing the average PI in the Distribution Centre was 96PI.

4.4 The respondent states that the complainant was absent from work on sick leave from October, 2010. It adds that the complainant met with Ms. A on 5 April, 2011 during which he produced a medical certificate from his GP stating he was fit to resume work but was unable to lift weights over 10kg. The respondent accepts that in the course of this meeting Ms. A advised the complainant that it did not have light duties in the warehouse but rejects that she informed him he could not return. It adds that Ms. A sought his agreement to have the respondent’s doctor contact his GP. The respondent confirms that a “Welfare Meeting” took place on 8 April, 2011 in the course of which Ms. B advised that there were no light duties available and as he was only able to perform such duties (as per his GP) he was not considered fully fit to resume work. It adds Ms. B also advised that the subject to medical advice (both the complainant’s GP and the company doctor) that a Back to Work Plan could be developed to assist him return to work. The respondent adds that this situation was repeated to the complainant in a letter dated 26 April, 2011. It states that this letter also set out several options to accommodate his return to work, advised that this list was not exhaustive, asked the complainant to discuss the options with his GP and invited him to a meeting on 29 April, 2011 to discuss the matter. The respondent states that in the course of this meeting the complainant advised he had spoken with his GP who recommended that he undergo an MRI scan and that he was returning to Poland to have this done and would revert to the respondent on 21 May, 2011.The respondent accepts that there was a series of correspondence between it and the complainant in early May, 2011and notes in particular the comment in his letter of 9 May, 2011 wherein he advises he had not discussed the options contained in the respondent’s letter of 26 April, 2011as requested. In the course of the Hearing both Ms. B and Mr. D stated that from their own knowledge acquired over the years there were no light duties available in the warehouse and they did not consider the tasks detailed by the complainant in his letter of 9 May, 2011 to amount to such. The respondent rejects the assertion that Mr. Z was afforded light duties on his return to work in October, 2011 following a lengthy absence due to a back injury.

4.5 The respondent states that it re-scheduled an appointment for the complainant with its Occupational Health Advisor on 31 May, 2011, which he attended. It accepts that he attended a meeting on 1 June, 2011 with Mr. X and Ms. A in the course of which (i) he confirmed that he had spoken to his GP about the options contained in the respondent’s letter of 26 April, 2011 and (ii) the respondent advised that as his GP had certified him unfit for duty s/he would have to certify him fit to resume and the complainant agreed to obtain this. The respondent states that the complainant submitted a medical certificate from his GP dated 2 June, 2011 certifying him fit to resume duty once he received “special training”. The respondent further states that it received the opinion of Its Occupational Medical Advisor by letter dated 9 June, 2011which was that the complainant was fit to return to work on a graded basis – i.e. performing the full range of duties but at a reduced rate (PI). It adds that the complainant attended a “Welfare Meeting” with Mr. X and Ms. B on 10 June, 2011 and it accepts that during this meeting (i) the complainant again sought to be assigned to duties primarily involving forklift driving, (ii) Ms. B expressed concern at the contents of the GP’s medical certificate, in particular the comment that he required special training in order to return to work , (iii) the complainant was advised of the opinion of the Occupational Medical Advisor that he was fit to resume work on a graded return to work programme and (iv) the complainant was requested to get his GP’s certification that he was fully fit to return to work.

4.6 The respondent states that the complainant obtained a medical certificate from the complainant’s GP stating that he was fully fit to return to work from 10 June, 2011 and he was returned to the roster at that time. In the course of the Hearing the complainant’s Line Manager (Mr. X) stated that he was notified by HR that the complainant was fit to resume duty on a graded basis, although he was unable to recall who in HR was involved. He was clear that the issue of light duties was not raised with him by anyone. Mr. X stated that he met with the complainant on 15 June, 2011 and agreed a Performance Plan with him which set out the targets expected of him over a five week period – starting at 65% PI and gradually increasing to 85% - the minimum PI required of any employee. The Performance Plan covered both Assembly Work (“Picking”) and work involving a Fork Lift Truck. Mr. X added that he never saw the Occupational Medical Advisor’s opinion of 9 June, 2011and he was unable to say how the reduced PI’s were developed. Mr. X rejected any suggestion by or on behalf of the complainant that he (the complainant) was somehow pressurised into signing this Performance Plan adding that the complainant signed the document of his own volition. The respondent states that the complainant was assigned picking tasks in the order in which they were on the computer system using the AMT device and Mr. X rejected, in the strongest terms, the allegation by the complainant that he or Mr. G overrode the system to deliberately assign the complainant picking tasks which involved heavy items.

4.7 The respondent (Mr. X) states that he met with the complainant on 28 June, 2011 to discuss his performance during the first week of the Performance Plan and agreed that the minutes of that meeting (which were furnished to the Tribunal) accurately reflect what occurred. In the course of the Hearing Mr. X stated that he was trying to be as facilitative as he could be to the complainant and was attempting to assist the complainant return to work in as comfortable a manner as possible. He added that he did not review the Plan, notwithstanding that the complainant had not achieved the agreed PI on “Picking” because the complainant confirmed that the targets contained in the Performance Plan were acceptable to him and he raised no issue when asked if there were any problems. The respondent (Mr. D) confirmed that the complainant’s evidence in terms of the incident involving Mr. G on 4 July, 2011 was accurate. The respondent (Mr. X) states that he met with the complainant on 6 July, 2011 to discuss his (the complainant’s) performance against the targets contained in the Plan in respect of the previous week. In the course of the Hearing Mr. X stated that the complainant had again failed to reach the “Picking” target contained in the Performance Plan and the matter was raised at the meeting. Mr. X accepts that in the course of this meeting the complainant informed him that Mr. G had instructed the complainant to work in an unsafe manner and that he (Mr. X) told him he should not behave in an unsafe manner and that if he came across a similar situation in the future to let him know. Mr. X stated that he subsequently raised the matter with Mr. G who advised that the matter had already been addressed by Mr. D. The respondent (Mr. X) added that he agreed to organise some training with the Assembly Trainer and have the complainant buddied up for a period. Mr. X stated that these arrangements were put in place and he was unaware there had been any problem with them. He added that in the circumstances the complainant raised no issues with the targets in the Performance Plan for the following week.

4.8 The respondent states that the Planning Manager (Mr. Y) is responsible for ensuring that the correct numbers of staff who possess the required skill sets, are scheduled for every shift. It adds that where order volume fall it is common practice to “flex down” a number of staff in accordance with the terms contained in employees’ contracts of employment. Flexing down involves the employee not being assigned the full amount of hours provided in the contract. The respondent states that the order volume forecast for week 19 was low and consequently Mr. Y prepared a list of six employees, including the complainant, who were to be flexed-down that week. In doing so he had regard to the number of staff required to perform the work, the skill sets necessary and the recent performance of employees. The respondent states that all six employees had not reached the required level of PI’s and it rejects the complainant’s assertion that flexing him down amounts to less favourable treatment of him as he was treated in the same manner as five other employees in similar circumstances.

4.9 The respondent (Mr. X) states that on the morning of 9 July, 2011 he requested the complainant (over the warehouse public address system) to report to his office in order to inform him that he (the complainant) was being flexed down to three days for the following week. Mr. X further states that about five minutes later he met with the complainant in the hallway outside the Goods Out Office and informed him that he was being flexed down. He adds that the complainant reacted in an aggressive fashion. He states that he spoke in a raised voice and pointed a finger at Mr. X demanding a meeting (with representation) to discuss the matter. Mr. X states that he informed the complainant that he did not have to meet with him about this and that he (Mr. X) had given him sufficient notice of the flexing down as per normal procedure. Mr. X adds that the complainant continued to speak in a raised voice, that he (Mr. X) found the behaviour threatening and he (Mr. X) walked away and returned to his Office. He further states that a couple of minutes later the complainant entered the Office and stood just inside the door. Mr. X adds that the complainant continued to demand a meeting to discuss the issue of flexing down and that he did so in an aggressive and threatening manner. The respondent (Mr. X) states that he continued to inform the complainant that he did not have to meet with him on the matter and adds that he requested him (the complainant) to return to work. Mr. X adds that the complainant left the Office and a few moments later he (Mr. X) went into the hallway where he observed the complainant on his mobile phone. He further states that he asked the complainant to finish the call, reminding him that the use of mobile phones whilst on duty was forbidden and the complainant told him he was on the phone to his lawyer. Mr. X adds that when the complainant finished the telephone call he (Mr. X) again requested the complainant to return to work and explained to him the potential consequences of his actions – i.e. that a failure to follow a reasonable instruction of a superior amounts to serious misconduct pursuant to the respondent’s Disciplinary Policy. The respondent (Mr. X) states that the complainant left the hallway and went into the warehouse area. He states that he went into the warehouse and noted that the complainant had not returned to work. Mr. X adds that he again instructed the complainant to return to work and he again refused to do so until he had a meeting with a representative present. Mr. X states that he again asked the complainant if he understood the potential consequences of his actions and he did not reply other than to again request a meeting.

4.10 The respondent (Mr. X) states that he immediately requested the complainant to attend a Disciplinary Meeting in respect of his conduct as outlined above. Mr. X adds agrees that that Mr. G attended as a notetaker and the complainant was accompanied by a colleague Mr. F. Mr. X states that at this meeting he suspended the complainant, with pay, in accordance with the Disciplinary Policy for refusing to obey a reasonable instruction to return to work, pending a formal investigation of the incident. In the course of the Hearing Mr. X stated that as Acting Shift Manager he had the authority to do so and that he immediately notified Human Resources and Mr. D of his actions.

4.11 The respondent states that the complainant attended Investigation Meetings pursuant to the company’s Disciplinary Policy on 12 July, 2011 and 14 July, 2011 – the latter meeting was suspended because the complainant was certified unfit for duty by his GP. In the course of the Hearing it was confirmed that these meetings were chaired by Mr. D. He (Mr. D) confirmed that the statements submitted by Mr. X and a colleague as part of the investigation process (in respect of the alleged events of 6 July, 2011) were not furnished to the complainant. In the course of the Hearing Mr. D also stated that he had reviewed CCTV footage of the day in question however, the respondent resiled from this position somewhat after the Hearing. The respondent (Mr. D) stated that on foot of the investigation process he conducted he decided that there were grounds to progress the matter to a Disciplinary Hearing and he communicated this to the complainant by letter dated 15 July, 2011. The respondent states that two Disciplinary Meetings were held with the complainant on 22 July, 2011 and 25 July, 2011, both of which were conducted by Mr. K, Operations Manager. In the course of the Hearing Mr. K stated that the minutes of these meetings (which were opened to the Tribunal) accurately reflect what happened at those meetings and he confirmed that on the basis of the responses given by the complainant in the course of these meetings he (Mr. K) was of the view that the complainant’s behaviour on 6 July, 2011 amounted to serious misconduct (in terms of the respondent’s Disciplinary Policy contained in the Staff Handbook and he decided to terminate the complainant’s employment with immediate effect and this was communicated to the complainant on the day. The respondent states that this decision was confirmed to the complainant, in writing, on 26 July, 2011 and he was informed (in that letter) that he had a right of appeal of the decision.

4.12 The respondent states the complainant appealed the decision to terminate his employment and this appeal was conducted by Mr. R, Senior Project Manager. Mr. R attended at the Hearing and stated that he met with the complainant, who was accompanied by a colleague, on 16 September, 2011. The respondent (Mr. R) states that the complainant introduced no new information for consideration in the course of the appeal process and he (Mr. R) upheld the decision to terminate the complainant’s employment. The respondent states that this was communicated to the complainant in writing on 9 November, 2011. It is submitted on behalf of the respondent that the dismissal of the complainant was for reasons of insubordination and that it had no connection whatsoever with the complainant’s disability. It is further submitted, for the same reasons, that the dismissal does not amount to victimisation of the complainant contrary to the Acts. The respondent further submits that it applied the Disciplinary Policy to the process and that the complainant was given every opportunity to plead his case.

4.13 The respondent rejects the complainant’s assertion that it failed to provide him with reasonable accommodation pursuant to section 16 of the Employment Equality Acts, 1998-2011. It states that the complainant was certified as fit to resume duty by his GP in June, 2011 and thereafter that it supported him in terms of the manner in which he resumed duty at that time i.e. on a graded PI Plan. It adds that it was not possible to facilitate part-picking or part-fork lift truck assignments for him as that would have required extensive and costly reconfiguration of company-wide warehouse information systems and the technology change implications of same. It submits therefore that it afforded him reasonable accommodation in terms of section 16 of the Acts.

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 - 2011 and contrary to section 8 of those Acts, (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 – 2011 and contrary to section 8 of those Acts, (iii) victimised the complainant contrary to section 74(2) of the Employment Equality Acts, 1998-2011, (iv) dismissed the complainant in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2011 and (v) failed to provide the complainant with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2011. 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- 2011 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 I propose to look at the complainant’s allegation that the respondent failed to afford him reasonable accommodation in the first instance. It is accepted by both parties that the complainant had a disability, within the meaning of section 2 of the Acts, at all times relevant to this complaint and I concur with that view. Section 16(1)(b) of the Employment Equality Acts, 1998-2011 provides that an employer is not obliged to retain an employee in a position if s/he is not fully competent and capable of undertaking the duties attached to that role. However, 16(3)(a) of those Acts provides that an employee with a disability is to be considered fully competent and capable to perform the duties attached to a position, if s/he could do with the provision of “appropriate measures” by his/her employer, commonly called reasonable accommodation. 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[1]. The essence of that Determination is that an employer is obliged to make an informed and considered decision or what the employee’s capacity is in the circumstances and what accommodation is possible, reasonable and proportionate in that regard. If all of the options that may be available are not adequately considered then it cannot be said that an employer was able to form a bona fide conclusion that they are impossible, unreasonable or disproportionate. It is well established that such a failure can amount to a failure to provide reasonable accommodation and that any enquiry by an employer can only be regarded as adequate if the affected employee is given the opportunity to influence the decision.

5.4 The initial medical opinion of the complainant’s GP dated 4 April, 2011was that the complainant was fit to resume work but that he should avoid lifting weights over 10kg. He brought this to the attention of the respondent the following day. The respondent’s (Ms. A) immediate response at this meeting, without any medical advice whatsoever, was that (i) there were no light duties available in the warehouse and (ii) as he was not certified fully fit for work he could not resume his duties. This position was restated to the complainant by Ms. B at the Welfare Meeting on 8 April, 2011. The complainant suggested a number of roles/duties which he felt were suitable for him given his medical advice at the time. These were dismissed by the respondent because (i) it considered them to have a manual component, (ii) all Operatives were expected to be available to perform the full range of duties associated with the role, (iii) there was a Collective Agreement in place governing the mobility of staff throughout the warehouse and (iv) rotation of roles was necessary for staff to retain certain skills – e.g. forklift driving. I am satisfied that the above gave rise to either subjective evaluations on the part of the respondent or would not have presented insurmountable difficulties if they were to have been departed from for a period – on this latter point it is noteworthy that the respondent made no effort to ascertain the duration the complainant would be unable to perform the full range of duties attached to the post.

5.5 Subsequent attempts by the complainant to secure a return to work were refused by the respondent until such time as the complainant produced a certificate from his GP that he was fully fit to resume the full range of duties. In this regard the respondent accepted the complainant’s GP certificate dated 3 June, 2011which stated that he was “fit to resume work but required a manual handling training course” – which he received immediately upon his return to work on 14 June, 2011. It is the respondent’s case that it afforded the complainant reasonable accommodation in the form of a graded return to work, albeit performing the full range of tasks associated with his role, on his return to work on 14 June, 2011. It adds that the possibility of a phased return to work was first mentioned to him at the Welfare Meeting on 8 April, 2011 and this option, along with a number of others, were formally put to him in its letter dated 26 April, 2011. I have examined this letter and I am satisfied that it does make reference to a number of options. However, the letter also states that the options outlined are not exhaustive and that the company is willing to explore other possibilities. Having evaluated the evidence adduced by the parties I am satisfied that this is entirely inconsistent with the actual behaviour of the respondent at that time and find that it failed to explore the suggestions advanced by the complainant and insisted that he would not be permitted to return to work until his GP certified him as fully fit to do so.
5.6 The respondent further states that the letter of 26 April, 2011 also requested the complainant to discuss the options proposed by it (in the letter) and that he failed to do so. The complainant accepts that this is the case but it is clear to me that the respondent was unaware of this fact until it received the complainant’s letter of 9 May, 2011. Moreover, it had no medical evidence whatsoever in terms of the complainant’s capacity to perform any of the tasks associated with his role as a Warehouse Operative until it received the report from its Occupational Medical Advisor shortly after 9 June, 2011. It is noteworthy that the respondent did not seek that Advisor’s opinion on the suitability of the range of tasks suggested by the complainant in terms of his disability. These duties were, in the opinion of the complainant, ones he could perform without aggravating his back injury. Section 16(4)(b) of the Employment Equality Acts, 1998-2011 defines, in some manner “appropriate measures” in terms of the obligation on an employer in respect of providing reasonable accommodation. This provision expressly provides for the adaptation or reorganisation of tasks – which is what the complainant was seeking. The obligation placed on an employer in terms of the positive duty to provide reasonable accommodation to an employee with a disability is for it to make an honest and informed decision on what is reasonable and proportionate having regard to all of the circumstances, including cost and disruption to the service. In the regard the respondent states that if it had acceded to the complainant’s suggestion it would have (i) unravelled a Collective Agreement between it and SIPTU in terms of staff flexibility and skill retention and (ii) required extensive and costly reconfiguration of company-wide warehouse information systems and the technology change implications of same. In essence the respondent is arguing that the aforementioned would give rise to a disproportionate burden on it and thus offers it a defence in terms of section 16(3)(b) of the Acts. Having carefully considered the evidence adduced on its behalf I am not satisfied that this is the case. In reaching this conclusion I particularly note that in the course of the Hearing the respondent stated (i) the Shift Manager assigns tasks during a shift and can re-assign duties if the need arises and (ii) the computer system operated in the warehouse could be overwritten manually, if the need arises.

5.7 Finally on this issue, it is common case that the complainant signed a Performance Plan with his Line Manager (Mr. X) on his (the complainant’s) return to work on 15 June, 2011. It is also common case that this Plan set out the targets expected of the complainant over a five week period – starting at 65% PI and gradually increasing to 85% - the minimum PI required of any employee – and that it covered both Assembly Work (“Picking”) and work involving a Fork Lift Truck. Mr X stated that (i) he was notified by HR that the complainant was fit to resume duty on a graded basis, although he was unable to recall who in HR was involved, (ii) the issue of light duties was not raised with him by anyone and (iii) that he never saw the Occupational Medical Advisor’s opinion of 9 June, 2011and he was unable to say how the reduced PI’s were developed. In light of the foregoing it is unclear how and by whom these reduced targets were established. The respondent has not produced any evidence which demonstrates that any medical opinion was taken into account in any deliberations. The complainant states that he signed this document because he wished to return to work and this was the only route available to him. It is the respondent’s case that this Performance Plan amounted to reasonable accommodation in terms of section 16 of the Acts. In light of my comments in this and the preceding four paragraphs I do not accept that this is the case. I find that the actions of the respondent, in setting arbitrary targets without reference to the complainant’s situation, do not amount to an adequate consideration of the options available which could lead it to a bona fide conclusion that they are impossible, unreasonable or disproportionate in the circumstances as required by the relevant caselaw[2]. Consequently, the complainant is entitled to succeed with this element of his complaint.

5.8 I shall now look at the complainant’s allegation of less favourable treatment of him on grounds of disability contrary to the Acts. This comprises two elements. The first is the alleged failure of the respondent to provide him with light duties when requested and the second is the respondent’s decision to flex him down on 9 July, 2011. As regards the first issue the complainant compares himself with Mr. Z, a former colleague (also a Warehouse Operative) who suffered a back injury in 2010 and was absent from work for just over a year. Mr. Z attended at the Hearing and stated that his doctor had certified him fit for light duties only and that on his return he was rostered on a three day week and was assigned to “picking” duties from the outset, although he only picked light products. He added that he performed this type of duty for two weeks and then he returned to full duties on a full week attendance pattern until his employment with the respondent ceased on 13 December, 2011. Section 6 of the Acts provides that discrimination shall be taken to have occurred where “a person is treated less favourable than another person is, has or would be treated in a comparable situation on any of the….discriminatory grounds.”. Having considered the evidence adduced I am satisfied that the treatment afforded Mr. Z in terms of a shorter working week was also available to the complainant and he refused it. I am further satisfied, on balance, that Mr. Z was not consciously assigned “picking” duties involving light items and that if he was assigned an above average number of such jobs, it was as a result of fortune rather than design. In this regard I note, in particular that Mr. Z was (i) unable to say that any such special arrangements had been agreed and with whom and (ii) stated he used the standard AMT handset which all Warehouse Operatives used when performing “picking” tasks. I am therefore satisfied that the complainant has failed to establish a prima facie case of discrimination in respect of this element of his complaint and it cannot succeed.

5.9 The second component of the complainant’s concerns the circumstances surrounding the decision to flex him down in early July, 2011. The respondent states that this is a process it uses on a regular basis, pursuant to clauses contained in the employees’ contracts of employment which results in some employees not being assigned the full amount of weekly hours. This process arises when order volume forecast is low. The respondent states that this was the scenario which existed in respect of week 19 (2011) and that the complainant, along with five other colleagues, were selected to be flexed down by the Planning Manager (Mr. Y) having regard to the number of staff required to perform the work, the skill sets necessary and the recent performance of employees. The respondent states that all six employees had not reached the required level of PI’s and it rejects the complainant’s assertion that flexing him down amounts to less favourable treatment of him as he was treated in the same manner as five other employees. I have examined the data furnished by the respondent on this issue and I am satisfied that all of the employees selected had not reached the required PI and were therefore, in the normal course, suitable candidates for to be flexed down. However, the revised PI’s which applied to the complainant were tainted as they were discriminatory on grounds of his disability (see paragraph 5.7 above). Consequently, the use of these targets as part of the selection process for flexing down the complainant is also tainted. It is well established that discrimination occurs “when the same rules are applied to different circumstances or different rules are applied to similar circumstances”[3]. I am satisfied that the respondent treated the complainant in the same manner as it did all other staff who were flexed down and this, coupled with the fact that the information underpinning the decision was tainted, establishes a prima facie case of discrimination on grounds of disability contrary to the Acts. The respondent has failed to rebut this inference and consequently the complainant is entitled to succeed with this element of his complaint.

5.10 It is common case that the complainant was dismissed by the respondent on 29 July, 2011 and that this dismissal was subsequently confirmed to the complainant (following appeal) on 9 November, 2011. It is also common case that the dismissal arose as a result of events on 9 July, 2011 involving the complainant and his Line Manager (Mr. X). It is submitted on behalf of the complainant that this dismissal amounts to (i) discrimination of the complainant on grounds of disability contrary to the Acts or, in the alternative (ii) victimisation of the complainant in terms of section 74(2) of the Acts. The respondent submits that the complainant’s employment was terminated for reasons of insubordination, which amounts to serious misconduct in terms of the section nine of the respondent’s Employee Handbook and that it had no connection whatsoever with his disability. It further submits, for the same reason, that the complainant’s dismissal does not amount to victimisation contrary to the Acts. The events of 9 July, 2011 are set out in sections 3 and 4 of this Decision and I do not propose to recite them in full detail again. Having carefully considered the evidence adduced I am satisfied that (i) the actions of the complainant on 9 July, 2011 were such as to warrant the application of the respondent’s Disciplinary Procedure and (ii) the respondent would have treated any other employee (even one in the same or similar circumstances to the complainant) the same in the particular circumstances which prevailed on that day. Whilst the complaint before this Tribunal is not one of unfair dismissal I am further satisfied that the manner in which the respondent subsequently conducted the investigation etc. was largely consistent with the Disciplinary Procedure and that it was entitled at the end of that process (and in accordance with that Procedure) to terminate the complainant’s employment. The complainant has not adduced a scintilla of evidence to support his assertion that the termination of his employment was linked in any way whatsoever with his disability. In contrast, the respondent has adduced evidence which clearly demonstrates that the complainant’s dismissal was due to factors entirely unconnected with his disability. Consequently, the complainant has failed to establish a prima facie case that his dismissal amounts to discrimination of him on grounds of disability contrary to the Acts and this aspect of his complaint fails.

5.11 The complainant also argues, in the alternative, that his dismissal amounts to victimisation of him in terms of section 74(2) of the Acts. In Tom Barrett v Department of Defence[4] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2)(a), (c) or (f) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. The complainant submits that his request for reasonable accommodation in April, 2011 is the “protected act” in terms of the first limb of the test. Having considered the evidence adduced by the parties I am satisfied that the complainant has again not advanced any evidence to support the assertion that the termination of his employment amounts to victimisation contrary to the Acts. Consequently, he has failed to establish a prima facie case that his dismissal amounts to victimisation of him in terms of section 74(2) of the Acts and this element of his complaint fails.

5.12 The final element of the complainant’s case is that the respondent victimised him after he had made his request for reasonable accommodation in April, 2011 and subsequently entered into a series of correspondence and meetings with the respondent. It is submitted on his behalf that this request and the subsequent interaction with the respondent is a “protected act” in terms of the first limb of the test in Tom Barrett v Department of Defence[5] and having considered this matter I am satisfied that it is encompassed by the definition of victimisation provided at section 74(2)(f) of the Employment Equality Acts, 1998-2011. The complainant submits that the events of 4 July, 2011- when he was instructed to pick an item from the storage area by Mr. G in a manner which he (the complainant) considered to be contrary to health and safety regulations and subsequently he reported this matter to the Shift Manager (Mr. D) who informed him to disregard the instruction and to follow the regulations in such a scenario he (the complainant) was immediately assigned orders which involved heavy items – amounts to victimisation of him contrary to the Acts. In the course of the Hearing the complainant asserted that Mr. G overwrote the computer system to achieve that outcome. The essence of the complainant’s claim on this matter is that Mr. G deliberately tampered with the warehouse computer system to ensure that the complainant was assigned these particular orders which required picking of heavy items. When pressed he confirmed that he had no evidence of this and that it was an assertion on his part. In support of this assertion the complainant introduced Mr. P as a witness. The witness had worked in the respondent’s premises in Donabate since 2008 and had worked on the computerised order system operated in the warehouse since then. He added that the computerised system can be manually overwritten to assign specific tasks to specific employees. However, he further stated Mr. G do so and confirmed that he had never asked him (Mr. P) to perform such an operation.

5.13 Having considered the foregoing I find that the complainant has failed to adduce any credible evidence to support his assertion and consequently, that it what it remains. In Melbury Developments v Arturs Valpetters [6] 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.”. The complainant in the instant case has only advanced assertion and speculation as regards this element of his complaint and in those circumstances I find that he has failed to satisfy the initial probative burden required of him and this element of his complaint cannot therefore succeed.

6. DECISION OF THE EQUALITY OFFICER

6.1 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 respondent discriminated against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2011 and contrary to section 8 of those Acts when it flexed him down in July, 2011;

(b) the respondent failed to provide the complainant with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998- 2011;

(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, 1998-2011 and contrary to section 8 of those Acts;

(d) the complainant has failed to establish a prima facie case that the respondent dismissed him in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2011;

(e) the complainant has failed to establish a prima facie case that the respondent victimised him in terms of section 74(2) of the Employment Equality Acts, 1998-2011.

6.2 I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998 – 2011 that the respondent pay to the complainant the sum of €9,000 by way of compensation for the distress suffered and the effects of the discrimination on him. This award is for an infringement of the complainant’s rights under the Acts and it does not contain any element of remuneration. It is therefore not subject to the tax code.

_______________________________________

Vivian Jackson

Equality Officer

3 November, 2014

 
'Footnotes'

[1] EED 037

[2] A Health and Fitness Club v A Worker EED037

[3] Finanzamt Koein- Altstadt v Schumacker Case C-279/93

[4] EDA1017

[5] Ibid.

[6] EDA 0917