The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-041
PARTIES
Michal Wojcik
AND
Sodexo Ireland Limited
(represented by IBEC)
File reference: EE/2013/360
Date of issue: 2 July 2015
HEADNOTES: Employment Equality Acts, Section 6, Disability – failure to provide reasonable accommodations, conditions of employment.
1 DISPUTE
1.1 This dispute concerns a claim by Mr. Michal Wojcikthat he was discriminated against by Sodexo Ireland limited on the grounds of disability contrary to section 6 (2)(g) of the Employment Equality Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 8 July 2013 under the Employment Equality Acts. On 10 June, 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Niamh O’ Carroll Kelly, 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 Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 16th June, 2015.
2 COMPLAINANTS' SUBMISSION
2.1 The complainant started work in June 2006 with Federal Security before his employment was transferred first to Noonan Security and then to the respondent on 29th July, 2012. The claimant resigned his position with the respondent on the 1st September, 2014.
2.2 The complainant submits that he was treated less favourably than other security guards following his disclosure that he was suffering from a rare medical condition, Cataplexy.
2.3 The claimant conceded that he is unfit to work due to his medical condition and is in the process of finalising his claim for a disability pension having been on a disability allowance for a period of one year.
3 RESPONDENT'S SUBMISSION
3.1 The respondent submits that they were completely unaware of the complainant’s medical condition until he volunteered the information to his manager on the 17th October, 2012.
3.2 The complainant worked with two other security guards at a site situated at Cappagh Hospital. Each security guard did a combination of night and day shifts. They did a regular pattern of three, twelve hour shifts over a seven day period which equated to 36 hours per week.. They did nights during the week and a combination of days and nights at weekends.
3.3 The respondent submits that they did everything they could to establish the nature of the complainant’s condition. At first the complainant refused to give his consent to allow the respondent contact his consultant. However, on the 16th January the complainant gave the respondent a letter from his consultant. On the 23th May, 2013 the respondent was furnished with a letter from the claimant’s GP stating that he should work days only. The respondent offered him a new roster which involved him working two twelve hour day shifts. He rejected this offer. He went on certified sick leave on that date and remained on sick leave until his employment ended.
3.4 The complainant’s consultant stated on the 21st June, 2013 and again on the 23 July, 2013 that what was required was regular working hours, either all days or all nights. An appointment was arranged with the company doctor for the 28th June, 2013. He was certified by the company doctor as unfit to work.
3.5 In August, 2013 following a meeting with the company welfare officer he was offered a nights only roster however this meant his working hours would be reduced to 70%. This offer was refused by the complainant.
3.6 The respondent stated that it was not possible to give the complainant all day shift with 36 hours work per week. To do so would have required the consent of the other two security guards to alter their rosters and that consent was not forthcoming.
3.7 The respondent submits that from March, 2014 to September 2014 the claimant remained on sick leave but failed to submit certificates. He resigned his position by e- mail dated the 1st September, 2014.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was the subject of discrimination on the grounds of disability. In reaching a 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.
Disability
4.2 Section 2 of the Acts states: “‘‘disability’’ means—
(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 behaviour,
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 complainant was diagnosed with a rare condition, Cataplexy where induced collapses can occur during episodes of emotion e.g. laughing, stress, tiredness etc. This condition comes within the meaning as ‘disability’ as set out in the Act. Therefore, I find that the complainant had a disability within the meaning of the Acts. This was not disputed by the respondent.
Less favourable treatment
4.3 Section 6(1)
“ For the purposes of this Act, 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”
The complainant stated that he was treated less favourably than the two other security guards, indirectly identifying them as the comparator. The other two security guards did not have cataplexy or any other medical condition and both were working under their agreed contractual hours, as was the complainant until he became ill. The complainant would have remained on his normal roster had he not been diagnosed with his condition. The respondent did not unilaterally alter the claimant’s roster. The complainant requested that it be done to facilitate the management of his condition. Had the complainant not disclosed the condition to the respondent and had he not made requests that his working hours be altered I am satisfied that the no alteration in his working hours would have occurred.
Provision of Reasonable Accommodation
4.4.Section 16.
“Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
(2) In relation to—
(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,
(b) he offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and
(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body.
subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.
(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.
The respondent on the 23rd May, 2013 offered the complainant a days only shift amounting to two twelve hour days. The claimant refused that offer. In August, 2013 he was offered night shifts only amounting to 70% of his normal working hours. That offer was refused by the complainant. It was not possible to offer the complainant 100% of his working hours on a days only basis due to the contractual hours of the other two security guards and the number of shifts available at the Cappagh site.
The complainant also conceded he did not want to move to a different site. In any event the complainant conceded that he was unfit to work regardless of what accommodations were made to facilitate him. He has been on disability allowance for the last year and is in the process of applying for a disability pension.
Conditions of Employment
4.5 The complainant worked with two other security guards at a site situated at Cappagh Hospital. Each security guard did a combination of night and day shifts. They did a regular pattern of three, twelve hour shifts over a seven day period which equated to 36 hours per week.. They did nights during the week and a combination of days and nights at weekends. The complainant had worked at the Cappagh site for a prolonged period of time. He did have some concerns about the security at the back of the site however that matter was dealt with under the grievance procedure. Neither of the other two security guards raised any grievances. The security issue at the back of the site was not connected to the complainant’s medical conditions. The respondent did everything within its control to facilitate the complainant return to work. I am satisfied that the respondent did not discriminate against the complainant in relation to conditions of employment.
5. DECISION
5.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
· The respondent did not discriminate against the complainant in the provision of reasonable accommodation.
· The respondent did not discriminate against the complainant in relation to conditions of employment.
· The complainant resigned his position voluntarily.
· The complainant’s case fails.
_____________________________
Niamh O’ Carroll Kelly BL
Equality Officer
2nd July 2015