The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-067
PARTIES
A Worker
AND
A Public Employer
File reference: EE/2013/661
Date of issue: 14 August 2015
HEADNOTES: Employment Equality Acts Sections 6, 8 – Disability – conditions of employment - Harassment - Victimisation.
1. DISPUTE
1.1. This dispute concerns a claim by Ms. A, the Complainant, that she was discriminated against in relation to conditions of employment by Employer X on the grounds of Disability, and suffered Harassment and Victimisation contrary to the Employment Equality Acts.
1.2. The Complainant referred her claim to the Director of the Equality Tribunal on 15th December 2013. On the 8th July 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Michael McEntee, 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. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on the 17th July 2105.
2. COMPLAINANT'S SUBMISSION
2.1. The Complainant Ms. A. started work as a Clerical Officer for the Local Government Service over 20 years ago – initially in the Midlands and latterly with her current employer.
2.2. In June 2011 she developed and was diagnosed with the skin condition Urticaria and florid Irritable Bowel syndrome (IBS). She was on sick leave from the 20th June for almost all of the remainder of 2011.
She was examined by the employer’s GP Dr.M in August 2011 on the basis of her Urticaria. He indicated to her that if she was unable to return to work he would assess her again in 8 weeks and would then have to sign her off work permanently on ill health grounds.
On the 4th October 2011 the employer requested Ms. A to again attend Dr. M. As Ms. A was afraid that Dr. M would sign her off permanently she attended her own private GP Dr. K. She asked Dr. K to support her in a part time return to work to see how she might cope. He agreed to support this approach. This suggestion was also supported by Dr. M, the employer’s Doctor. He had examined Ms. A on the 27th October 2011 at the Employer’s request.
2.3. Ms. A returned to work on a part time basis on the 21st November 2011.
However the heat in the office aggravated her skin condition but also her irritable bowel syndrome. She proved unable to continue in work and submitted a Sick Certificate on the 5th December 2011. On the 14th December 2011 Ms. A was removed from the payroll
In the New Year (2012) Ms. A applied to retire on grounds of Ill Health. She was examined by Dr R as part of her application. The examination was based on her Urticaria although she did bring her IBS to Dr. Ryan’s attention. The application for ill health retirement was refused.
In March 2012 Ms. A was hospitalised for a period on grounds of her IBS and she remains, to date, under the care of her Consultant Gastroenterologist. The Consultant wrote to the employer in April and June 2012 to certify that the condition was permanent and recommending retirement on ill health grounds. No response was received from the Employer.
In early 2012 Ms. A sent a formal complaint to the Pensions Ombudsman. A further Medical report was commissioned at the request of the Ombudsman from Dr.O’B. He confirmed that Ms. A was unfit for work and recommended a further specialist review from a Consultant Gastroenterologist. On receipt of this report the Complainant was returned to the Payroll until such time as her normal sick pay entitlements were exhausted.
Pension Rate of Pay was not applied as had been the case in a number of other cases of long term sick leave. Considerable correspondence passed between the parties on this subject.
2.4 The Complainant decided to opt for Voluntary Severance in August 2013. It was a step she did not wish to take but felt she had been left with no other option in view of the employer’s refusal to engage with her in a reasonable manner and to take account of her disability. Under the terms of the VS Scheme she is at a considerable financial disadvantage as she is not entitled to State benefits until the age of 60.
3. RESPONDENT'S SUBMISSION
3.1. The Respondent submitted a comprehensive submission outlining in detail the extensive correspondence and numerous Medical reports that have passed between the parties.
At all times the Respondent employer concerned, a major Local Authority, acted properly within the parameters of the relevant legislation governing Local Government employees, Superannuation Schemes, Sick Pay, Pension Pay and in terms of its own HR Procedures. A number of Medical reviews of the Complainant took place and all medical advice was followed.
The relevant Regulation is the Local Government (Superannuation) (Consolidation) Scheme 1998. This provides that
“the local authority are satisfied that the infirmity is permanent and is such as to prevent the officer from discharging his or her duties with reasonable efficiency”
The Respondent had referred Ms. A to a specialist Occupational Physician Dr.R in January 2012.
His report stated that
“It is not possible to describe her complaints as permanent, or to recommend on that basis that she is a suitable candidate for early retirement on the grounds of ill health”.
On this basis the application for retirement in December 2011 on the grounds of permanent infirmity was not valid.
3.2 Following this decision a number of different avenues for seeking redress were undertaken in parallel by Ms. A, a complaint to the Labour Relations Commission, correspondence from a Solicitor acting on her behalf and a referral to the Pensions Ombudsman.
3.3. As part of the Pension Ombudsman process a medical report in April 2013 was commissioned which largely confirmed the Medical report quoted above. The Pension Ombudsman medical report, certified that Ms. A was “currently unfit for work”. Ms. A was reinstated on the payroll following this report.
An application for Pension rate of Pay was received in June of 2013. Ms. A was informed that the application was receiving consideration having regard to the medical reports in her case.
The Complainant applied for the Voluntary Severance Scheme in August 2013 and departed in November 2013.
3.4 The Respondent’s position has been the subject of examination by the Labour Relations Commission, the Employment Appeals Tribunal and the Pensions Ombudsman without reproach.
The Respondent rejects out of hand any charge, suggestion or inference that it subjected Ms. A. to discriminatory treatment, bullying and victimisation of any kind.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the Complainant was subjected to discriminatory treatment, harassment and vistimisation and discriminatory dismissal by the on grounds of disability in terms of section 6 & 8 of the Employment Equality Acts and contrary to section 77 of those Acts.
It is not with the brief of the investigating Equality Officer in this case to comment on the details of the cited Local Government Legislation and Statutory Superannuation Regulations unless direct and strong evidence of discrimination is evident arising from the implementation of these provisions.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent …”
4.4 A long term illness situation such as in this case is always going to be fraught for all parties involved.
Medical reviews and reports were extensive including a current copy report (18th June 2015) submitted by the Complainant as part of the current Pension Ombudsman process. Medical confidentiality issues only allow a brief quote from this report – the Physician notes that after four years
“Accordingly at his stage I do not feel it is appropriate to offer an opinion in relation to her suitability or otherwise for ill-health retirement” The Physician continues and recommends further Medical specialist reviews.
I feel that his late report points to one of the main underlying problems of the entire case – it was not possible to get definitive medical evidence of a nature to satisy a successful application under the legal and statutory requirements of Local Government Early Retirement regulations.
The Report from the Respondent’s Consultant Occupational Physician, Dr.R. in January 2012, the Pensions Ombudsman Medical Consultant Dr.O’B in February 2013 and the latest Medical report of June 2015 are consistent in having difficulties with the permanence of other wise of Ms. A medical conditions.
In this scenario the actions of the Respondent Employer were in keeping with the Local Government Regulations and could not be otherwise.
The Complainant was clearly unwell and incapable of active duty but no so unwell as to be able to offer a long term prognosis required to satisfy the conditions of the Early Retirement Scheme.
I noted that the Complainant had not had much contact with relevant Local Authority Trade Unions who might have been able to, via collective bargaining at local or national level, seek alterations, if such were indeed warranted to the Regulations. In this regard I noted that the Pensions Ombudsman is still active in this situation and his Report is awaited.
4.5 Having regard to all the foregoing, and on the balance of probabilities, I am satisfied having reviewed at length, the correspondence and the oral evidence given by the parties, that the actions of the Local Authority concerned were in keeping with Local Government Law as it applied at the time in question, relevant Statutory Regulations and good HR practice in a case of long term illnesses.
The applications for Early Retirement on Ill Health Grounds and the question of Pension Pay were handled in keeping with published regulations. No complaints were raised in relation to the mechanical operation of the Voluntary Severance package.
The Pensions Ombudsman continues to be involved in relation to detailed Superannuation issues raised by the Complainant which are not within the remit or competence of the Equality Officer.
The Voluntary Severance process was above board and could not be seen to be tainted by any discrimination.
No Prima Facie evidence of discrimination as required by Equality Legislation could be identified in the practice of the Employer towards the Complainant or in the exercise of the Statutory Local Government Regulations including the Voluntary Severance package.
5. DECISION
5.1 I find that the Complainant was not discriminated against on grounds of disability, was not victimised or harassed and was not dismissed for discriminatory reasons.
_______________________
Michael McEntee
Equality Officer
14th August 2015