Equality Officer’s Decision No: DEC-E/2015/004
Parties
Bednarczyk
(Represented by Mr. William Kelly BL
Instructed by E.M. O’Hanrahan - Solicitors)
-v-
Gem Pack Foods Ltd
(Represented by Deirdre Gavin BL
Instructed by Matheson Solicitors)
File No: EE/2012/346
Date of issue: 30 January, 2015
Employment Equality Acts, 1998-2011 – Sections 6,8 and 16 –discriminatory treatment – gender – maternity leave – disability – reasonable accommodation
1. DISPUTE
This dispute involves a claim by Ms. Edyta Bednarczyk (“the complainant”) that she was (i) discriminated against by her employer Gem Pack Foods Ltd. ("the respondent") on grounds of gender, family status, disability and race in terms of section 6(2) of the Employment Equality Acts, 1998-2011 and contrary to section 8 of those Acts in respect of her conditions of employment and (ii) dismissed by the respondent in circumstances amounting to discrimination gender, family status, disability and race in terms of section 6(2) of the Employment Equality Acts, 1998-2011 and contrary to section 8 of those Acts. The complainant also contends that the respondent failed to provide her 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
2.1 The complainant, who is a Polish national, commenced employment with the respondent as a General Operative in August, 2005. She commenced maternity leave in July, 2011 and contends that the manner in which she was treated by her employer when she attempted to return to work at the end of that leave amount to (i) discrimination and (ii) discriminatory dismissal of her on the grounds cited contrary to the Acts. She further contends that the manner in which the respondent treated her during her pregnancy amounts to discrimination of her on the grounds cited contrary to the Acts. The complainant also states that she suffered a back injury in January, 2010; that this amounts to a disability in terms of the Acts and that the respondent is on notice of same. She asserts that the manner in which the respondent subsequently treated her, but in particular from end February, 2012, constitutes discrimination of her on grounds of disability contrary to the Acts. She further contends that the respondent failed to provide her with reasonable accommodation in terms of section 16 of the Acts. The respondent denies the complainant's assertions in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998- 2011 to the Equality Tribunal on 2 July, 2012. 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 16 October, 2013 - the date the complaint was delegated to me. The Hearing on the complaint took place on 30 October, 2013 and 11 March, 2014. A number of issues arose at the Hearing which gave rise to further correspondence between the Equality Officer and the parties. This process concluded in mid-June, 2014. In the course of the Hearing on 30 October, 2013 Counsel for the complainant withdrew the following elements of the complaint - (i) the alleged discriminatory dismissal of the complainant, (ii) all elements of the complaint advanced on grounds of family status and (iii) all elements of the complaint on grounds of gender which pre-dated the commencement of the complainant’s maternity leave in July, 2011. 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 she notified her employer of her pregnancy in October/November, 2010. She adds that she thinks this notification was in writing and was unsure whether or not it indicated her expected date of return to work. The complainant states that she was placed on light duties for a short while thereafter and accepts that between then and the commencement of her maternity leave on 4 July, 2011 she was absent on several periods of certified sick leave and on annual leave for the full month of June, 2011. The complainant states that sometime in November, 2011 she attended at the respondent’s premises and spoke with her Line Manager (Ms. A) in the canteen. She adds that she attempted to give Ms. A a letter confirming her (the complainant’s) intention to resume work on a certain date but that Ms. A refused to accept it. The complainant states that Ms. A advised her that it was not necessary to confirm her intention to return to work in writing unless she intended to extend her period of maternity leave. The complainant states that she relied on this and adds it was agreed that she was due to commence work on 9 January, 2012 – she had originally believed she was due to resume work on 2 January, 2012 but this period was extended until 9 January, 2012 to take account of public holidays which occurred during her maternity leave and to which she was entitled to the benefit of. The complainant adds however, that she did not resume work on 9 January, 2012 as she was certified unfit for work by her General Practitioner (on 6 January, 2012) due to “back and right shoulder pain”. In the course of the Hearing, in response to a question from Counsel for the respondent, the complainant confirmed that she had received legal advice at that time, that she should provide written confirmation of her intention to resume work to her employer.
3.2 The complainant states that she received a letter from Ms. B, a staff member of the respondent’s HR Department, dated 12 January, 2012 advising that she had failed to comply with the return to work notification requirements under the maternity protection legislation and consequently the complainant was not entitled to return to work with the respondent. It is submitted on the complainant’s behalf that the contents of this letter are not indicative of an employer who wants an employee to resume work and that this amounts to less favourable treatment of the complainant on grounds of gender. It is further submitted that she received this letter because she was Polish – an Irish employee returning from maternity leave would not have received such a letter – and that this constitutes less favourable treatment of the complainant on grounds of race contrary to the Acts.
3.3 The complainant states that she replied to this letter on 19 January, 2012 advising of the discussion she had with Ms. A in November, 2011; confirming that she intended to return to work and asking for a date when she would be permitted to resume. She adds this letter also stated that if the respondent was not satisfied the letter complied with the requirements of the maternity protection legislation it might advise what further steps she was required to take in that regard. The complainant states that Ms. B replied by letter dated 27 January, 2012 advising that she (the complainant) was entitled to return to work on 27 February, 2012 and that on her return she would be required to participate in a return to work interview. It is submitted on behalf of the complainant that the contents of this letter – in particular the requirement to have her attend a back to work interview – constitute less favorable treatment of her on grounds of gender and race. In the course of the Hearing the complainant stated that she had never attended such an interview previously. She was unable to identify any other employee who was treated differently in similar circumstances.
3.4 The complainant states that she noted Ms. B had copied her letter of 27 January, 2012 to Mr. X, a Company Director and she (the complainant) wrote to Mr. X on 8 February, 2012 in which she related what had previously occurred between her and both Ms A and Ms. B and advised that she wished to invoke the respondent’s Grievance Procedure in respect of the manner she had been treated by Ms. B. The letter also detailed the complainant’s apprehension about attending a back to work interview and sought clarification as to whether or not that meeting was “some type of disciplinary meeting”. The complainant adds that Ms. B replied on 16 February, 2012 advising that employees returning to work after a prolonged absence for any reason were required to attend a back to work interview and clarifying that the interview did not form any part of the respondent’s Disciplinary Procedure. The complainant states that when she attempted to participate in the return to work interview on 27 February, 2012 she was refused the opportunity to do so by Ms. B. In the course of the Hearing the complainant confirmed that at this time she was on certified sick leave. It is submitted on the complainant’s behalf that this sequence of events amounts to less favourable treatment of her on grounds of gender and race contrary to the Acts.
3.5 The complainant states that she continued on certified sick leave and confirmed at the date of the Hearing that she never resumed work after her maternity leave, save for one day in October, 2012. She states that she received a letter from Ms. B dated 10 May, 2012 requesting her to attend an interview of 18 May, 2012 to discuss her long-term sick absence in accordance with the respondent’s Sick Leave Policy. It is submitted on the complainant’s behalf that the contents of this letter amount to discrimination of her on grounds of gender, disability and race contrary to the Acts. The complainant states that she did not attend this interview and was unable to offer any explanation for this. She accepts that at the respondent’s request and expense, she attended Dr. Y in Medmark, the company retained by the respondent for occupational medical advice, on 25 June 2012 and subsequently Mr. Z, a Consultant Orthopaedic Surgeon at the Beacon Clinic. She states however, that she did not accept the opinion of either because it was contrary to the medical opinion she had received from her General Practitioner (who certified her unfit for duty) and that of her Consultant Neurosurgeon. She submits that the actions of the respondent amount to less favourable treatment of her on grounds of gender, disability and race contrary to the Acts. Finally, on the discriminatory treatment element of her complaint, the complainant submits that the respondent never addressed the grievances detailed in her letter of 8 February, 2012 and submits that the failure of the respondent in this regard constitutes discrimination of her on grounds of gender, disability and race contrary to the Acts.
3.6 The complainant contends that the respondent failed to provide her with reasonable accommodation in accordance with its obligation under section 16 of the Employment Equality Acts, 1998-2011. It is submitted on her behalf that the respondent was on notice she suffered with a back problem from 6 February, 2010 when her General Practitioner certified that she should not lift items over 5kg in weight. Counsel for the complainant states that the complainant was certified unfit for duty by her General Practitioner on 6 January, 2012 due to “back and right shoulder pain”. The complainant states that when she spoke with Ms. B on 27 February, 2012 she (the complainant) enquired if she could be assigned light duties and Ms B refused, saying only full duties were available. In the course of the Hearing the complainant stated that she did not seek any other type of accommodation. She also confirmed that other than her medical certificates from her General Practitioner she did not furnish the respondent with medical evidence, although she added that in her view she felt she would be able for light duties. The complainant also accepted, in response to a question from Counsel for the respondent, that she was afforded light duties in February, 2010 when she presented the medical opinion of her General Practitioner to the respondent.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s allegations in their entirety. It states that the complainant advised of her pregnancy in October/November, 2010 and in accordance with its normal practice she was placed on light duties for a period before she commenced a period of sick leave until March, 2011. It adds that she worked normal shifts, by and large, between then and June, 2011 when she went on a months’ annual leave and thereafter immediately commenced maternity leave on 4 July, 2011. It accepts that the complainant met with Ms. A in November, 2011 but rejects the assertion that the complainant attempted to give her a letter indicating her (the complainant’s) intention to resume work and that she (Ms. A) refused it. The respondent further rejects the complainant’s assertion that Ms. A informed her that there was no need to confirm her intention to return to work in writing. It adds that such a requirement is required under section 28 of the Maternity Protections Acts, 1994-2004. Moreover, it states that the Employee Handbook requires an employee returning from maternity leave to give four weeks’ notice of her intention to do so and the complainant did not comply with these requirements. The respondent accepts that Ms. A, who is the Factory Planning Manager, prepared a document setting out the complainant’s entitlements in respect of her period of maternity leave and that this indicated a return to work date of 9 January, 2012. It adds that this document was prepared by Ms. A for payroll purposes (in May , 2011) and submits that it does not obviate the complainant’s statutory and contractual requirement to provide the respondent with four weeks’ notice of her intention to return to work.
4.2 The respondent states that when the complainant did not resume work on 9 January, 2012 its HR Department (Ms. B) wrote to her on 12 January, 2012 highlighting that she had failed to comply with the requirement to give the four weeks’ notice of her intention to return to work. In the course of the Hearing the respondent was unable to say why it waited until then to issue the letter. It adds that the complainant responded on 19 January, 2012 when she confirmed her intention to return to work and requested a date for her return. The respondent states that Ms. B replied on 27 January, 2012 advising that she could resume work on 27 February, 2012 and that on her return she would be required to participate in a return to work interview. It adds that such an interview is not part of any disciplinary process and is intended to bring the employee up to speed on with any changes that occurred in the employment during his/her absence and to give the employee the opportunity to raise any matters of relevance. The respondent states that the requirement for her to participate in such an interview was required under a revised provision in the Employee Handbook which had only recently come into operation and that it applied to all employees returning after a prolonged absence. It adds that the provision in the Handbook expressly requires employees returning to work after maternity leave to attend such an interview and consequently the respondent rejects the complainant’s assertion that this amount to discrimination of her. In the course of the Hearing the respondent was unable to say why the complainant was not permitted to return to work until 27 February, 2012 but stated that this was the first occasion an employee had failed to comply with the notice period requirement. The respondent accepts that Ms. B’s letter of 27 January was copied to Mr. X as the complainant had initiated personal injury proceedings in PIAB against it in December, 2011 and Mr. X had requested to be kept informed of any issue involving the complainant in his role as Operations Director.
4.3 The respondent accepts that the complainant wrote to it on 8 February, 2012 wherein she raised a number of matters through the Internal Grievance Procedure. In the course of the Hearing Mr. X stated that he passed this letter on to Ms. B to handle the matters raised. He added that this is what he would have done with all letters of that nature. He adds that Ms. B replied by letter dated 16 February, 2012 in which she confirmed that the back to work interview which had previously been proposed to the complainant was not part of the respondent’s disciplinary procedure. In the course of the Hearing the respondent (Mr. X) stated that it assumed this was the end of the matter; that it did not subsequently address the other issues detailed in the complainant’s letter of 8 February, 2012 and added that the matter could have been handled better. It submits however, that any failing on its part in this regard does not amount to discrimination of her on grounds of gender and race contrary to the Acts.
4.4 The respondent states that the complainant did not resume duty on 9 January, 2012 in any event because she was certified as unfit for work by her General Practitioner with effect from 6 January, 2012. The respondent adds that this absence was due to “back pain and right shoulder pain” and the complainant submitted medical certificates on a weekly basis detailing this as the reason for her absence until 17 February, 2012 when the reason for her absence was “back pain” only. It adds that the complainant continued on sick leave and submitted medical certificates on a weekly basis. The respondent further states that these certificates continued to certify “back pain” as the reason for her absence until 5 October, 2012 when it changed to “back pain and carpel tunnel syndrome”. The respondent states that the complainant never returned to work after the commencement of her maternity leave except for one day in October, 2012 and remained on certified sick leave until she resigned her employment on 28 April, 2013. The respondent states that the complainant reported at the premises on 27 February, 2012 to attend the return to work interview. It further states that at this stage the complainant was on certified sick leave since 6 January, 2012 and was certified as unfit for work. It adds that as the complainant was not in a position to resume duty the return to work interview was unnecessary and it was, in effect postponed until she was in a position to resume. It is submitted that this was a reasonable and practical approach to take in the circumstances and that it does not constitute less favourable treatment of her on grounds of gender and/or race contrary to the Acts.
4.5 The respondent states that the complainant remained on sick leave following the above events and it (Ms. B) wrote to her on 10 May, 2012 requesting her to attend a meeting on 18 May, 2012 to discuss matters connected with her absence. The respondent states that this meeting did not take place because the complainant was unavailable and subsequently it arranged to have her examined by Dr. Y, its Occupational Physician in Medmark. The respondent states that the complainant attended Medmark on 25 June, 2012 and underwent a medical assessment by Dr. Y. The respondent furnished a copy of Dr. Y’s report (dated 9 July, 2012) on the complainant after this assessment and he attended the Hearing to give evidence. He stated that the examination was normal and whilst there was some age related wear and tear in her cervical spinal area he could find no medical evidence that the complainant was suffering the pain she alleged. He added that in those circumstances he recommended that the complainant was fit for duty and should resume work. Dr. Y stated that he was subsequently contacted by Mr. X who requested a further review of the complainant and she was referred to Mr. Z, a Consultant Orthopaedic Surgeon at the Beacon Clinic. The respondent states that Mr. Z examined the complainant in early September, 2012 and he too was unable to find anything which could explain the symptoms she displayed or indicated to him. The respondent furnished a copy of Mr. Z’s report to the Tribunal and submits that it confirms Dr. Y’s diagnosis of the complainant. The respondent states that it made all reasonable efforts to facilitate the complainant’s return to work but she continued to remain absent on the certification of her General Practitioner. It submits that the action it took applies to all employees on long-term sick leave and it could not amount to less favourable treatment of the complainant on grounds of gender, race and disability contrary to the Acts.
4.6 The respondent accepts that the complainant was absent from work in February, 2010 and that her General Practitioner certified her as unable to lift objects more that 5kg for a period of a month. The respondent adds that the complainant was afforded light duties for that period which obviated the need to lift weights in excess of 5kg but that she subsequently resumed her normal range of tasks. It further states that whilst the complainant was absent from work between November, 2010 and the start of her maternity leave in 2011, these absences were due to pregnancy related issues. The respondent accepts that the complainant was certified as unfit for work by her General Practitioner with effect from 6 January, 2012, initially due to “back pain and right shoulder pain” and subsequently “back pain” then “back pain and carpel tunnel syndrome”. It states that during her period of absence the complainant did not at any stage request a return to work or indicate that she could resume duty with the provision of “appropriate measures”. It emphatically rejects the complainant’s assertion that she requested light duties from Ms. B when they met on 27 February, 2012 and that she (Ms. B) refused the request. The respondent adds its medical evidence was that the complainant was capable of resuming work but that the complainant refused to do so. It submits therefore that it did not fail to provide her 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 gender, disability and race, in terms of section 6(2) of the Employment Equality Acts, 1998-2011 and contrary to section 8 of those Acts and (ii) failed to provide the complainant 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, on balance of probabilities, that the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is 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 her case cannot succeed.
5.3 The complainant states that sometime in November, 2011 she attended at the respondent’s premises and spoke with her Line Manager (Ms. A). She adds that in the course of this conversation she attempted to give Ms. A a letter confirming her (the complainant’s) intention to resume work on a certain date but that Ms. A refused to accept it, adding that it was not necessary to confirm her intention to return to work in writing unless she intended to extend her period of maternity leave. The complainant states that she relied on this and adds it was agreed that she was due to commence work on 9 January, 2012 – she had originally believed she was due to resume work on 2 January, 2012 but this period was extended until 9 January, 2012 to take account of public holidays which occurred during her maternity leave and to which she was entitled to the benefit of. The respondent rejects the complainant’s assertions in their entirety. It accepts that the respondent subsequently wrote to the complainant on 27 January, 2012 advising her that she could resume until 27 February, 2012 four weeks after the complainant had furnished written notice of her intention to resume work. It argues that (i) section 28 of the Maternity Protections Acts, 1994 and 2004 requires the complainant to furnish such written notice and (ii) the Employee Handbook also requires an employee returning from maternity leave to give four weeks’ notice of her intention to do so and the complainant did not comply with either of these requirements.
5.4 The complainant takes issue with the alleged behaviour of Ms. A when they met in November, 2011. The respondent rejects the complainant’s version of events. When there is direct conflict between two people on what occurred on a particular occasion, an Equality Officer must decide, on balance, which version of events s/he considers to be more credible. I note Ms. A was employed by the respondent as Factory Planning Manager and that part of her role was to deal with employee queries in respect of pay, annual leave etc. A document prepared by Ms. A (in early May, 2011) was opened to the Tribunal which set out the complainant’s entitlements in terms of her maternity leave. The content of this document leads me to conclude that Ms. A had an informed understanding of maternity entitlements. I also note that the respondent’s Employee Handbook (at paragraph 3.7) required an employee intending to return from maternity leave to notify her Supervisor of her intention to do so at least four weeks before the proposed date of return. I am satisfied that Ms. A, again in her role as Factory Planning Manager, would have been familiar with the contents of the Employee Handbook. In light of the foregoing I find it extremely unlikely that she would inform the complainant that there was no need to confirm her intention to return to work in writing. Consequently, I prefer the respondent’s evidence on this matter.
5.5 The complainant did not comply with the statutory and contractual requirement to furnish written notification, at least four weeks in advance of the proposed date of return to work, that she intended to resume work. The statutory requirement is expressly provided in section 28 of the Maternity Protection Acts, 1998 and 2004. It appears to me that this requirement is intended to provide a degree of certainty for an employer so that it can conduct its business in an efficient manner and thus facilitate the orderly transfer of tasks between employees, particularly where an employee has been recruited specifically to provide cover for an employee on maternity leave. I am therefore satisfied that a failure to comply with this statutory obligation may militate against an employee seeking to return to work, insofar as it could be permissible for an employer to require an employee to await a return to work until the notification period elapses. In the instant case I am satisfied that the first time the complainant gave written notice of her intention to return to work was in her letter of 19 January, 2012. The respondent replied on 27 January, 2012 and advised that she could resume on 27 February, 2012 – four weeks from the date of the respondent’s letter. Whilst this does not comply with the entitlements available to the complainant once the written notification is given, which may create some difficulties for an employer in the normal course, nothing much turns on it in the instant case as is clear from my findings in the following two paragraphs.
5.6 An employee’s right to return to work after a period of maternity leave is one of a range of entitlements provided under the maternity protection legislation. However, this Tribunal has previously held that any such failure on the part of the employer to comply with that entitlement, can constitute less favourable treatment of employee on grounds of gender in terms of section 6(2A) of the Employment Equality Acts, 1998-2011. The complainant contends that the refusal of the respondent to permit her return to work at the conclusion of her maternity leave constitutes discrimination of her on grounds of gender and/or race. In the normal course the complainant would have been entitled to resume duty on 9 January, 2012. However, she was unable to do so because her General Practitioner had certified her unfit for work due to “back pain and right shoulder pain”. It is clear therefore that the respondent did not refuse the complainant the opportunity to return to work. A series of correspondence subsequently passed between the parties. The outcome of this process was that the respondent advised the complainant she could return to work on 27 February, 2012. Whilst the manner in which the respondent conducted this process was far from ideal, I am not satisfied that its actions amount to less favourable treatment of the complainant on either of the discriminatory grounds advanced – gender and race. The complainant was to return to work on 27 February, 2012. However, she remained medically certified unfit for work at this time. Indeed she continued on certified sick leave for a prolonged period thereafter. It is clear again that the respondent did not refuse the complainant the opportunity to resume duty on this occasion. In light of the foregoing I find that the complainant has failed to establish facts from which it could be inferred that she treated less favourably on grounds of gender and/or race (Polish nationality) in respect of the alleged refusal of the respondent to permit her return to work on both 9 January, 2012 and 27 February, 2012 and this element of her complaint fails.
5.7 It is common case that the respondent requested the complainant to attend a back to work interview on 27 February, 2012 – the date it had previously advised the complainant she could return to work. The complainant submits that this requirement constitutes less favorable treatment of her on grounds of gender and race. She states that when she attended for the interview on 27 February, 2012 it did not proceed and argues that did amounts to discrimination of her on the two grounds cited. The respondent rejects this and states (i) the Employee Handbook provides that employees returning from maternity leave may be requested to attend such an interview and it merely applied that to the complainant and (ii) as the complainant was on certified sick leave at that time she was not a position to resume work and the interview became unnecessary. I have examined the Employee Handbook in operation at the relevant time and I note it provides that an employee returning from maternity leave may be required to attend a back to work interview, albeit was a recent change to the Handbook. I accept the respondent’s argument that in circumstances where the complainant was not in a position to resume duty on the basis of a medical certificate from her General Practitioner it was entitled to refuse to hold the return to work interview while those circumstances prevailed. Consequently, I find that the complainant has failed to establish a prima facie case of discrimination on grounds of gender in terms of the respondent’s request that she attend the back to work interview and the subsequent postponement of that interview on the day. I further find that the complainant has failed to adduce any evidence that the alleged treatment of her was connected in any way whatsoever with her race (Polish nationality). Consequently, this element of her complaint cannot succeed.
5.8 It is common case that thecomplainant wrote to the respondent (Mr. X) on 8 February, 2012 wherein she raised some matters through the Internal Grievance Procedure. The complainant argues that the respondent ignored the contents of this letter, in particular the fact that Ms. B had previously commenced copying correspondence between them to Mr. X and that the actions of the respondent in this regard constitutes discrimination of her on grounds of gender and race contrary to the Acts. The respondent (Mr. X) states that he passed the letter on to Ms. B to handle the matters raised. He adds that this is what he would have done with all letters of that nature. The respondent states that it addressed one of the issues raised in the letter and accepts that it did not subsequently address the other issues therein and agrees that the matter could have been handled better. It submits however, that any failing on its part in this regard does not amount to discrimination of her on grounds of gender and race contrary to the Acts. It further accepts that Ms. B copied correspondence between her and the complainant to Mr. X and that this arose because he (Mr. X) had requested to be kept informed of any issues concerning the complainant (in his capacity as Operations Director ) as the complainant had initiated personal injury proceedings in PIAB against the respondent in December, 2011. It is true to say that the manner in which the respondent handled the complainant’s letter of complaint falls far short of what might be considered best practice, particularly for an organisation which is well established and employs almost one hundred employees. However, I am not satisfied, on balance, that any shortcoming on its part were not influenced by the fact that the complainant was a Polish woman seeking to return to work after an absence from the workplace on maternity leave. All the complainant advances in respect of tis element of her complaint are assertions of discriminatory treatment. She has adduced no evidence that would elevate those assertions to facts which would enable her discharge the initial probative burden required. Consequently, this element of her complaint fails.
5.9 It is common case that the respondent (Ms. B) wrote to the complainant on 10 May, 2012 requesting that she (the complainant) attend an interview on 18 May, 2012 to discuss her long-term sick absence in accordance with the respondent’s Sick Leave Policy. It is submitted on the complainant’s behalf that the contents of this letter amount to discrimination of her on grounds of gender, disability and race contrary to the Acts. All the complainant advances in this regard is speculation and assertion. It is well established that speculation and assertion is insufficient to discharge the probative burden required of her[1]. Consequently, this element of her complaint fails.
5.10 The complainant states that she would have been able to return to work after February, 2012 had the respondent provided her with reasonable accommodation. The complainant confirms that the accommodation she was seeking was light duties and that she requested if this was possible when she met with Ms. B on 27 February, 2012. The respondent rejects this assertion. I must therefore decide on balance, as previously stated, which version of events I find more credible. I note the complainant accepts that on a previous occasion she sought light duties (in February, 2010) on the basis of medical opinion that she was unable to lift over 5kg and that she was assigned light duties for the period specified in the medical opinion. I further note that she was assigned light duties in November, 2011 when she advised the respondent she was pregnant. I am therefore satisfied, on balance, that had she requested light duties of Ms. B her request would have been examined and not dismissed out of hand as alleged by the complainant. Moreover, I note that by this time she had been absent from work for several weeks due to “back pain and right shoulder pain” initially and subsequently “back pain”. Nowhere in any of these medical certificates does it state that the complainant would be fit to perform light duties, as had occurred in February, 2010. In light of the foregoing I prefer the respondent’s version of events.
5.11 The complainant confirmed that save one day in October, 2012, she never resumed duty with the respondent. It is common case that the complainant attended the respondent’s Occupational Physician (Dr. Y) on 25 June, 2012 and underwent a medical assessment. His report indicates that the examination was normal and whilst there was some age related wear and tear in her cervical spinal area he could find no medical evidence that the complainant was suffering the pain she alleged and in his opinion she was fit for duty and should resume work. This opinion was subsequently confirmed by Mr. Z, a Consultant Orthopaedic Surgeon at the Beacon Clinic. The complainant states that she did not accept the opinion of either because it was contrary to the medical opinion she had received from her General Practitioner (who certified her unfit for duty) and that of her Consultant Neurosurgeon. She submits that the actions of the respondent amount to less favourable treatment of her on grounds of gender, disability and race contrary to the Acts. The respondent rejects this stating that the action it took applies to all employees on long-term sick leave. I have carefully evaluated the evidence adduced by the parties on this matter. It appears to me that the respondent took a sensible approach to the situation and referred the complainant to two medical specialists for assessment. The medical opinion available to the respondent from its medical advisors at this time was that the complainant was fit for work. It also had conflicting medical certificates from the complainant’s General Practitioner stating that the complainant was unfit for work. These medical certificates were opened to the Tribunal and they clearly state this opinion – there is no reference to light duties anywhere in them. Despite these contradictory opinions the respondent did not in any way seek to force the complainant to return to work. Indeed, it is clear to me that had it adopted that approach it would have met stern resistance from the complainant. Instead its actions were entirely consistent with the medical opinion of her General Practitioner. The complainant was unable to identify an employee with a different condition who was treated differently in similar circumstances. In light of the foregoing I find that the complainant has failed to establish a prima facie case of less favourable treatment on grounds of disability. In addition, she did not adduce any evidence that supports her assertion that the actions of the respondent constitute less favourable treatment of her on grounds of gender and race. Consequently, this element of her complaint fails.
5.12 The final element of the complainant’s case is that the respondent failed to afford her reasonable accommodation in accordance with section 16 of the Acts from February, 2012. She confirms that the accommodation she was seeking was light duties. She states that she raised this matter with Ms. B on 27 February, 2012 and her request was refused. The respondent rejects the complainant’s version of events and I have already held at paragraph 5.10 above that I prefer the respondent’s evidence on this matter. The medical certificates covering the complainant’s absence from work from 6 January, 2012 were furnished to the Tribunal. These certificates unequivocally state that the complaint is unfit for duty. There is no reference in them to light duties or some other form of accommodation that would facilitate her return to work. I note the complainant’s comment at the Hearing that other than her medical certificates from her General Practitioner she did not furnish the respondent with medical evidence and that in her view she felt she would be able for light duties. However, she furnished no details of this when she made any such approach to the respondent other than the alleged discussion on 27 February, 2012. In the circumstances I am satisfied that the complainant did not raise the issue of reasonable accommodation with the respondent. Consequently, I find that she has failed to establish a prima facie case that the respondent failed to afford her such accommodation in accordance with section 16 of the Acts and this element of her complaint cannot succeed.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find that -
(i) the complainant has failed to establish a prima facie case of discrimination of grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 – 2011 and contrary to section 8 of those Acts in relation to her conditions of employment.
(ii) the complainant has failed to establish a prima facie case of discrimination of grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 – 2011 and contrary to section 8 of those Acts in relation to her conditions of employment.
(iii) the complainant has failed to establish a prima facie case of discrimination of grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 – 2011 and contrary to section 8 of those Acts in relation to her conditions of employment.
(iv) the complainant has failed to establish a prima facie case that the respondent failed to provide her with reasonable accommodation in accordance with section 16 of the Employment Equality Acts, 1998 – 2011
and her complaint fails in its entirety.
_______________________________________
Vivian Jackson
Equality Officer
30 January, 2015
'Headnote'
[1] See Melbury Developments v Arturs Valpeters EDA917