DEC-E2015-066

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2015-066

PARTIES

Grainne Hoey

(Represented by David O’ Regan BL)

AND

White Horse Insurance Ireland Ltd.

Represented by Mason Hayes & Curran

File reference: EE/2013/303 & EE/2013/525

Date of issue: 14 August 2015

1. DISPUTE

1.1 This dispute concerns a claim brought by Ms. Grainne Hoey (hereinafter the “Claimant”)wherein she claims that she was discriminated against by White Horse Insurance Ltd (hereinafter the “Respondent”) on the grounds of disability and race contrary to s. 6 (2) of the Employment Equality Acts 1998 to 2011 (hereinafter the “Acts”) in relation to discriminatory dismissal in terms of s. 8 of the Acts, that the respondent failed to provide him with reasonable accommodation in accordance with s. 16 of the Acts, that she performs “like work”, in terms of s.7 of the Acts and is entitled to equal remuneration in accordance with s. 29 of the Acts and that she was victimized in accordance with s. 74 (2) of the Acts .

1.2 The Claimant referred her claim to the Director of the Equality Tribunal under the Acts. In June 2014, in accordance with his powers under s. 75 of the Acts, the Director delegated the case to me, Caroline McEnery, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with s. 79(1) of the Acts and as part of my investigation I proceeded to the matter a hearing on 10th July 2015.

2. BACKGROUND TO CLAIM

2.1 The Claimant was employed from 7th April 2008 with White Horse Insurance Ltd as a Claims Controller. The Claimant’s employment was terminated on 1st August 2013 by way of dismissal due to incapacity. The Claimant’s appeal of this dismissal was rejected on 16th August 2013.

2.2 The Claimant was taking the following claims:

- Equal pay (claim reference EE/2013/303)

- Discriminatory dismissal (claim reference EE/2013/525)

- Victimisation (claim reference EE/2013/525)

- Failure to provide reasonable accommodation (claim reference EE/2013/525)

On the day of the hearing, the Claimant withdrew the equal pay claim as this was already heard before the Rights Commissioner. A preliminary issue was raised in relation to dismissal claim by the Respondent. She proceeded with her claims for discrimination and victimization.

3. PRELIMINARY ISSUE

The Respondent raised a preliminary objection s. 101 of the Acts which prohibits the Claimant from seeking redress for a claim under the Unfair Dismissals Act 1997 to 2007 and the Employment Equality Acts 1998 to 2011 arising from the same set of facts.

3.1 The Employment Appeals Tribunal heard the Claimant’s claim for unfair dismissal under the Unfair Dismissals Acts 1977-2007 and the Rights Commissioner has heard the Claimant’s claim for sick pay under the Payment of Wages Act 1991.

3.2 This was not disputed by the Claimant.

3.3 The equal pay claim was withdrawn on the day of the hearing by the Claimant.

3.4 The unfair dismissal element of the claim will not be considered in light of s. 101 of the Acts by virture of the fact that it has been dealt with by the Employment Appeals Tribunal. However, the remaining claims will be considered for the purpose of this decision.

4. CLAIMANT’S SUBMISSION

A. Discrimination.

It is the Claimant’s case that she was the subject of discrimination on the grounds of gender and disability. It was submitted that this unlawful treatment amounted was dismissal for discrimination on the basis she was not given reasonable accommodation for a disability and subsequent pregnancy related illness.

Based on my decision on the preliminary matter wherein it was decided that dismissal has already been heard, this decision will solely related to the discriminatory issue of reasonable accommodation and gender.

The Claimant contends she should have been given reasonable accommodation of time by the Respondent during the time she was awaiting a full medical report to confirm the initial symptoms she suffered. These initial symptoms included vertigo, dizziness and suggestive symptoms of M.S. after her pregnancy as it would have been possible to complete these assessments definitively in relation to her potential diagnosis of MS. Only then would her medical advisors be in a position to determine her ability to return to work.

S.16 (2) of the Acts sets out the nature and extent of the employer’s obligatons in certain cases and in particular where the employee is fully capable to return to work with the provision of reasonable accommodation. It was also submitted by the Claimant at the hearing that she raised concerns with the Respondent due to the vagueness of the medical report which was furnished by SERCO. The Claimant alleges these concerns were not addressed by the Respondent. Notwithstanding this she contends it was clear that the investigations into her condition were progressing until her pregnancy which resulted in these investigations being put on hold. She also suffered pregnancy related problems. She also contends she requested a list of tasks from the company on 8th May 2013. She would then be in a position to assess if she was able to carry out these tasks and duties.

B. Victimisation

On the 8th November 2012 the Claimant raised grievances internally. In January 2013 she submitted complaints to the various employment redress forums. Subsequent to this, it is her claim that she was victimised for raising these grievances and making these complaints due to her disability. In particular she states that her sick pay was stopped after four months in contrast to the eight months sick leave benefit that was afforded to a comparable employee. The Claimant states that she was provided with two weeks notice before her sick pay came to an end. In addition, she submits that her maternity pay was not paid by the Respondent and they dismissed and victimised her to avoid paying her this entitlement. In the Respondent’s submission it stated “it was clear that it was prepared to revisit the matter, if further clarity in relation to her illness could be provided”.

The Claimant also submitted that she was the subject of victimisation due to the frequence of weekly phone calls she received from the Respondent relating to her medical conditions. In comparison she submits that this level of constant communication was not made with her colleagues when they were out on sick leave.

She was also requested to attend a meeting regarding her absence while out sick on the 10th May 2013 which resulted in disciplinary action and ultimately in dismissal on the 1st August 2013. She claims she was dismissed on this date to avoid payment of her maternity pay by the company which was due to start on or around the 28th August 2013.

5. RESPONDENT’S SUBMISSION

A. Discrimination

The Respondent’s submission is that the Claimant was not discriminated or victimised. Instead she was lawfully dismissed due to ongoing incapacity. The Respondent contend the Claimant was on long term sick leave since 7th September 2012 suffering from vertigo and an undiagnosed illness.

The Respondent paid her four months sick leave until 4th January 2013 in excess of five day entitlement. The Respondent submitted its sick leave policy was discretionary to pay more than the five days outlined in their policy.

The Claimant was issued with a final written warning on the 10th May 2013 due to her absence. In the same letter she was warned that failure to return to work within eight weeks would result in dismissal.

On the 30th July 2013 Mr. W and Ms. A of the Respondent had a telephone call with the Claimant to discuss her ongoing absence and her medical assessments to date including her dizziness, tiredness with memory and concentration issues and the pregnancy related SPD problem she needed crutches for. On the 1st August 2013 the Claimant was dismissed from her employment following this call. The Claimant was due to commence her maternity leave on the 28th August 2013.

B. Victimisation

The Respondent claimed that they did not victimise the employee and treated her in line with the Company Policy.

6. MEDICAL EVIDENCE

The Respondent arranged for the Claimant to be independently assessed by an independent health screening provider, SERCO, who contracted the examination to Medmark under the care of Dr. S. In turn SERCO’s medical attendants furnished the Respondent with the medical report rewritten in its own format signed off by Serco’s Doctor. The Claimant’s position is that more weight should be given to the original reports scripted by Dr. S. on behalf of Medmark who passed these reports to Serco. It is the Respondent’s position that the Serco reports were the only reports available to them during the process.

In summary the Claimants medical assessments stated the following:

· 8th November 2012: SERCO report summarised the telephone consultation with Serco occupational health service providers for the Respondent, when the Claimant was deemed unfit for work.

· 7th December 2012: SERCO report stated-The Claimant was deemed unfit by Dr. S. (Medmark).

· Dr. S of Medmark and agent for SERCO, saw the Claimant, then the Claimant’s own doctor reviewed Dr. S’s report.

· 5th March 2013: The Claimant attended Dr. J her own Neurologist who diagnosed her with suspected MS. This report was provided to the Respondent in July 2013 prior to her dismissal.

· 5th April 2013: SERCO report stated her medical assessment was put on hold as she was pregnant. The report suggested that her treatments are postponed due to her pregnancy. It was stated that she was expected to make a good recovery and to resume work. However, she would be unfit for next 6 -9 months. In Dr. S’s report of 5th April she stated “I expect that with benefit of intervention Ms H will make a good recovery and resume fitness for work. Such intervention is now withheld until September 2013 and therefore her return to usual duties is unlikely in my opinion for 6 to 9 months.”

· 30th May 2013: The Claimant attended her Neurologist Dr. B

· 13th June 2013: The Respondent requested Dr. B’s report but the Claimant refused her consent to provide it to the Respondent as she claimed it was easier for her to try to get the report herself.

· 5th July 2013: SERCO reviewed the Claimant via Dr. S (Medmark) for the third time and deemed her unfit for work for the next 3 – 6 months. This report is dated 17th July 2013. The Serco report stated “further investigations have been put on hold until after the pregnancy”

Overall based on the medical evidence from both the Claimant and the Respondent advisors it was recommended that the company should have waited to reassess the Claimant’s medical position after her baby was born and the outstanding neurological investigations could be completed were completed to facilitate an accurate assessment of her fitness to attend work at this stage.

7. FINDINGS AND CONCLUSIONS

Having carefully considered the facts of this case I have to decide that there was failure on the part of the Respondent to provide reasonable accommodation to the Claimant. Furthermore, the Claimant suffered victimisation as a result of her disability and gender.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

Burden of Proof

S. 85A (1) of the Acts states: “Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”

Consequently, the Claimant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. She succeeded in this regard.

A. Discrimination

S. 6(1) of the Acts provides that: “discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

S. 6 (2) (a) – (i) of the Acts outlines that the Claimant must be treated less favourably on the grounds of gender, marital status, family status, sexual orientation, religion, disability, race or a member of the traveller community.

The Claimant claims that she was discriminated on the grounds of disability and gender and in particular for not receiving reasonable accommodation pursuant to the Acts.

S. 1 of the Act defines a disability as: -

“(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behavior,

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

The Claimant’s illness and condition falls under this definition.

S. 16 (3) of the Act sets out the nature and extent of the employer’s obligation to provide reasonable accommodation in the circumstances where an employee has a disability:

“(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.

(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.

(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.

On the 8th May 2013, the Claimant requested a list of her proposed duties from the Respondent. The Respondent failed to reply to this reasonable request. Therefore, it failed to take steps to accommodate her disability.

The Respondent failed to follow the expert medical advice which recommended that the ongoing testing for MS would resume after the Claimant had given birth to her baby. However, the Respondent failed to wait until the Claimant was in a position to continue with the ongoing tests in order to make its decision regarding her capacity.

Similarly, the Respondent failed to follow its own expert medical advisors report of the 17th April 2013 wherein it was stated that the Claimant was unfit to return to work for 3 – 6 months following that date. Consequently, where the Respondent failed to follow the medical advisor, it cannot be reasonable held that it took the necessary steps to reasonably accommodate the Claimant.

B. Victimisation

The Claimant raised a grievance on 8th November 2012 relating to the issues of sick pay, on call duties and hours of work. At the hearing the Claimant said she was told by the Respondent that if she did not drop these grievances relating to her making personal calls while at work would be dealt with by the Company. She pursued her grievances and the findings of the investigation were issued in January 2013. The Claimant’s grievances were not upheld.

S. 74 of the Acts states:
“(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—
(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c).”

The Claimant submitted that her colleague was afforded eight months sick leave pay in contrast her sick leave pay was stopped after four months. The Respondent stated that the Claimant was paid until the 4th January 2013. The Respondent also stated that the sick leave policy was discretionary and in excess of 5 days pay.

The Claimant submitted that she was receiving telephone calls from the Respondent weekly in relation to her medical condition. It was not disputed by the Respondent. This occurred according to the Respondent with the Claimant due to the fact her illness was undiagnosed. However, the investigations into her illness were progressing up to her pregnancy but were put on hold due to medical advice.

The Claimant was undergoing investigation for suspected MS. In addition she was also suffering from pregnancy related illness. She was unfit to return to work for a period which was confirmed by both the Claimant’s and Respondent’s medical attendants. With regard to her investigation into suspected MS, these were postponed until the birth of her baby. She contacted the Respondent on the 8th May 2013 requesting an outline of her duties which the Respondent were offering her upon her return to work. No response was received from the Respondent. This was not disputed by the Respondent at the hearing.

The Claimant was subject to a disciplinary investigation which resulted in a final written warning dated the 10th May 2013. She was requested to return to work within eight weeks, failing to do so would result in termination of employment. The Respondent’s own medical advisor at this time deemed the Claimant unfit for work for another three to six months on the 5th July 2013 so it was not possible for her to return due to her pregnancy related condition which is gender specific.

Despite this medical advice and following a telephone call with Mr. W and Mr. A of the Respondent on the 30th July 2013, the Claimant was dismissed by letter dated the 1st August 2013. The Claimant was due to go on her maternity leave on the 28th August 2013. The Respondent stated that reason for dismissal was due to the ongoing incapacity. However, it is important to note that in Serco’s medical report dated 17th April it stated the Claimant “should make a good recovery and be able to return to her previous role however this was unlikely to be achieved in the next 6 to 9 months”. In the medical reports the medical advisors recommend reassessment after the Claimant’s birth of her child. The company did not facilitate this.

8. CONCLUSION/DECISION

8.1 I have investigated the above complaints and make the following decision in accordance with the relevant sections of the Acts set out above that:
· the Claimant has established a prima facia case of discrimination on the ground of disability pursuant to s. 6 (2) of the Acts and contrary to s. 16 (3) of those Act in relation to failure to provide reasonably accommodation in the workplace by her employer thereby amounting to discrimination under s. 1 of the Acts. In measuring the quantum of compensation I have had regard to all of the circumstances of the case including the distress which she suffered in consequence of the discrimination together with the requirement to make an award which is effective, proportionate to the wrong suffered and dissuasive. In accordance with section 82 of those I award the complainant €6,000 in compensation for the adverse treatment suffered; and
· That the Respondent did victimise the Claimant in terms of section 74 (2) of the Employment Equality Acts 1998 – 2008. In measuring the quantum of compensation I have had regard to all of the circumstances of the case including the distress which she suffered in consequence of the victimization and victimisatory dismissal together with the requirement to make an award which is effective, proportionate to the wrong suffered and dissuasive. In accordance with section 82 of those I award the complainant €6,000 in compensation for the adverse treatment suffered.

8.2 I am satisfied that the appropriate form of redress is an award of compensation. In measuring the quantum of compensation which is fair and equitable I order the Respondent to pay the Claimant a total of €12,000 in compensation. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and victimisation and does not include any element relating to remuneration and is therefore not taxable.

Caroline McEnery
Equality Officer
14 August 2015.