The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. EE-2015-042
PARTIES
An Employee
AND
An Employer
(Represented by Doyle Solicitors)
File reference: EE/2013/035
Date of issue: 3 July 2015
HEADNOTES: Employment Equality Acts Sections 6 and 8 – Discrimination /Disability
1: DISPUTE
This dispute concerns a claim by Ms X that she was discriminated against by her employer, the Respondent, on the grounds of disability in terms of Section 6 of the Employment Equality Acts and contrary to the provisions of Section 8 of those Acts.
The complainant referred her claim to the Director of the Equality Tribunal on 31st January 2013 under the Employment Equality Acts. On 19th May 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 and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 29th May 2015.
2: COMPLAINANT’S SUBMISSION
2:1 The Complainant started work for the respondent on 30th March 2008 and the employment continues.
2:2 The Complainant submits that she suffered discrimination on Disability grounds in terms of her reference for an Occupational Health Assessment on the 7th December 2013. The reference on the Claim form to “Other” grounds was mentioned at the Oral hearing but deemed by agreement to be part of the principal claim.
2:3 The Complainant submitted that she was referred, in a discriminatory fashion, to the Occupational Health Department, arising from her Multiple Sclerosis condition and being a wheelchair user.
2:4 She was not made aware of the full reasons and background for the referral to the OH Doctor. At the OH examination, personal details were discussed with her which she found most upsetting and discriminatory.
2:5 The Complainant fully accepted that the Respondent was within its rights to refer her for an Occupational health review.
3: RESPONDENT'S SUBMISSION
3:1 The Respondent states that the complainant started working for the Respondent in November 2002 as a Community Employment Participant and was successful in March 2008 in her application for the post of Community Employment Supervisor based in Leinster. She works on a job share basis for 19.5 hours per week.
3:2 The Respondent submits that as a result of the departure of a number of staff, under a Voluntary Leaving and Early Retirement programme in August 2012, it was necessary to carry out an organisational restructuring to reallocate management responsibilities in the now expanded geographical areas. Ms Y. (Area Manager) was assigned the responsibility for Resource and Outreach Services in Leinster. She undertook a review of services now falling within her remit.
3:3 The review covered a range of issues including the physical infrastructure of the facilities & premises available, the approval of an application for Voluntary Severance from a core staff member, the promotion of another existing staff member to the position of Acting Service Coordinator and the referral of the Complainant and the Service Coordinator for an Occupational Health Appointment. (OH).
3:4 The Complainant was notified of an OH appointment by letter of the 16th November 2012 from the HR Manager. In this letter the HR Manager stated that the referral was “in connection with your current medical status and in follow up to the Occupational health Appointment which you attended in February 2012.”
During the remainder of November 2012 correspondence followed between the Complainant and the Respondent’s Area Manager by e mail and telephone in relation to the appointment and the reasons for the referral. The Respondent’s Regional Director and Chief Executive were copied on the initial e mails.
3:5 The OH Appointment took place on the 7th December 2012. The outcome was that the Complainant was fit to work with no recommendations made as to any special supports required.
3:6 The Respondent submitted that the review of the Leinster office and services provided therein was a normal management process. The referral of the Complainant for an Occupational Health (OH) Review was “to ensure that the Respondent Organisation was adequately addressing its duty of care to you”. (Letter of the 21st January 2013). The details supplied in advance of the examination to the Occupational Health Physician were a necessary part of this process. Reference was made to the earlier OH report in February 2012.
The Respondent did not accept that there was any discrimination against the Complainant in relation to her Wheelchair use or her Multiple Sclerosis in this process. Both conditions were well known to the Respondent.
4: FINDINGS OF THE EQUALITY OFFICER
4:1 I have to decide if the Complainant was discriminated against in the referral to the Occupational Health Department on the grounds of disability – specifically her being a Wheelchair user and having a Multiple Sclerosis condition.
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.
Section 2 of the Acts defines: “disability’’.
The clear physical evidence and medical reports confirm that the Complainant has a Multiple Sclerosis condition and is a wheelchair user. According she clearly has a “disability” under the terms of the Act.
4:2 At the Oral hearing it was clear to me that the principal grievance of the Complainant related to the contents and nature of the information supplied to the Physician for review. In addition the manner, particularly the communication, of the referral to the Occupational Health Physician and the fact that the sensitive personal issue to be raised with the Physician was not adequately advised or discussed in advance was also central to her grievance.
4:3 Her request for Redress was confirmed at the oral hearing as being an “Apology” from the Area Manager for the manner of the referral and in particular the manner in which information contained in the referral notes to the physician was handled.
A number of points arise here. The Complainant had already been for an OH review in February 2012. The OH Report from February 2012 was submitted by the Respondent. It indicated a serious ongoing medical condition which it would not be unreasonable for any employer to keep under active review.
The Complainant was not alone in being referred to the OH Department, a colleague, the Complainant’s Line Manager, likewise having an MS condition , was also referred at the same time for OH review. This colleague was not present at the Hearing and gave no direct evidence. However both parties accepted that this referral and review took place without incident.
The Complainant accepted the right of the Respondent to refer her for a Medical OH review and had no issue with the actual decision to refer her.
4:4 The actual communication process in relation to the referral was, in the first instance by letter dated the 16th November 2012. Further communications by telephone and e mail took place between the parties prior to the actual examination of the 7th December 2012.
The E mail dated the 23rd November from the Area Manager to the Complainant is a fairly comprehensive summary of discussions and the rationale for the referral. It refers also to telephone discussions having taken place.
There can be no doubt but that the parties fully discussed the referral in advance of the actual date in December.
4:5 A question here is to what extent the actual medical terms of the referral and specifically one element - a sensitive personal issue – the inclusion of which in the referral upset the Complainant, were brought to her prior notice. The Complainant strongly held that this did not happen satisfactorily.
The Respondent did accept in their submission that it would have been preferable that, if possible, references to the sensitive personal issue which formed part of the referral note should have been advised to and discussed privately with the Complainant, by her Line Manager, prior to the visit to the OH Physician.
On questioning at the oral hearing it was acknowledged by both parties that as the relevant Line Manager also has an MS condition and was the other staff member being referred for an OH Assessment this private pre OH assessment discussion with the Complainant by this Line Manager would have been personally very difficult for all concerned. The Respondent had, in November, promoted an existing staff member to provide additional support to the Line Manager concerned.
The advance communications (e mail and telephone) by the Area Manager directly with the Complainant in relation to the entire referral were deemed by the Respondent to have been adequate if not ideal. It was all that was realistically possible at the time.
In the initial referral letter/notes from November, the Respondent stated that the Complainant “is aware of the reasons for referral and has agreed to attend the appointment”. Somewhat contradictory the notes also stated that“The Referral had not been discussed” with the Complainant but the date of the actual completion of the referral form in the HR Department was unclear and the HR Department was at some remove, when completing the form, from the ongoing communications between the parties on the ground.
4:6 The Complainant, in questioning, reiterated that the key issue for her had been the manner in which one sensitive personal issue had been handled in the referral. She reiterated that she was seeking an apology from the Area Manager, not the Respondent Corporately, for this matter. This matter of the sensitive personal issue and its raising with the Occupational Health Physician had given her grievous upset and had necessitated her availing of the Respondent’s Employee Assistance Counselling services.
This issue was referred to in the OH Physician’s report where he reports that the issue was discussed and that “It would appear, certainly from Xs perspective, and her understanding that her line manager had addressed this issue and this is no longer an issue of concern. Obviously if that is not the case, X is happy to discuss the issue with the Organisation.”
4:7 In subsequent correspondence with the Complainant in regard to the issue on the 21st January 2013 the Respondent while not accepting that any discrimination had taken place did “regret any distress” that “may have been caused to you” and volunteered to deal with any “further queries”. Further correspondence followed on the 14th February 2013 outlining the Respondent’s Grievance Procedure and reminding the Complainant of the Respondent’s Employee Assistance Programme. An offer of a meeting to discuss her concerns with the new incoming Area Manager (who succeeded the Area Manager involved at the time of the OH referral) was also made. The Complainant availed of the EAP counselling service provided by the Respondent in relation to her distress following the OH referral. No formal proceedings were taken under the Grievance Procedure.
4:8 The Complainant confirmed that she had an MS condition prior to joining the employment of the Respondent, she receives special assistance in her domestic situation and had been provided with an adapted workstation in the office. Apart from the upset occasioned by one element of the OH referral she has enjoyed continuing to work there. There was no evidence or allegation of any other discrimination or victimisation either at the time of the referral or subsequently.
4:9 No material loss of any nature was occasioned by the visit to the OH Physician.
4:10 In general the Respondent confirmed that references for OH Assessments are a standard practice averaging some 25 per annum in the last four years. Total staff complement of the organisation was approximately 2,500 persons. On questioning the Respondent did not indicate that any of these referrals had been the subject of any particular complaints by the staff concerned in relation to the manner of referral.
Likewise the other colleague from the same office, also with an MS condition, referred to OH at the same time as the Complainant was not cited by either party as having had any negative feedback.
4:11 The Respondent confirmed that all Managers and staff members were familiarised and trained in the Company Dignity at Work Policy – a copy of which was supplied to me. The Respondent had in 2012 and continues to have well detailed, fully documented procedures in the entire employment area.
5: Conclusions of the Equality Officer
5:1 I have considered all the evidence both written and oral presented to me. It is clear, as stated above, that the Complainant has a disability.
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.
5:2 The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these Complainants, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant.
5:3 The Complainant has alleged that she was discriminated against on the grounds of her disability and wheel chair use by the respondent. However at the Oral hearing it was clear that it was the issue of how a sensitive personal issue was handled at the OH review and the request for a subsequent apology from the Area Manager that was the crux of the issue.
5:4 The OH reference for the Complainant was the second during 2012 and in view of the nature of the OH report from the February 2012 referral, supplied to the hearing, could not be deemed to be unwarranted.
The Respondent clearly indicated in correspondence with the Complainant (letter of 21st January 2013) that the Referral was
“to ensure that the Respondent organisation was adequately addressing its duty of care to the Complainant. As part of the standard referral process, the Association is obliged to provide all relevant information relating to the employee, inclusive of medical history, sick leave record and details of any other concerns or issues which may have been raised locally.”
5:5 No material or other loss was occasioned to the Complainant who continues to work, by her own evidence contentedly and without any issues, save for this issue related to the OH referral and the request for an apology, for the Respondent.
The office and work station was adapted to the Complainant as a wheel chair user and she accepted that she had no issues here. At the oral hearing the wheelchair usage issue did not seem to cause any discriminatory issues for her in terms of the OH referral – her primary focus of Complainant.
5:6 The statement of regret for any possible distress arising from the OH referral, although not the Apology from the Area Manger sought by the Complainant, was offered by the Respondent, in writing, as early as 21st January 2013.
The proffered statement of regret was for “distress that may have occurred” and not for any discrimination. A further personal meeting with the new incoming Area Manager, replacing the earlier Area Manager who had made the OH referral, to discuss the Complainant’s concerns, consequent on her dissatisfaction with the Respondents response in January 3013, was offered for March 2013.
This offer of regret in relation to “Distress Caused” was reiterated by the Respondents Legal Representatives at the oral hearing.
The quick and comprehensive response of the Respondent, in January 2013 and thereafter in 2013, to the Complainants concerns in relation to one personally sensitive issue referred to the Physician are worth noting in the Respondent’s favour.
5:7 The Complainant was clear at the Oral hearing that she enjoyed working for the Respondent. A feeling of ongoing or day to day discrimination was clearly not an issue either at the date of the referral or subsequently.
5:8 A Medical Occupational Health review of the Complainant with her medical history and disability, was always going to be personally sensitive, complex and broad ranging. The OH process could not have been conducted on anything less than a full review covering all relevant material. The inclusion, as part of the referral, of an issue which the alleged lack of advance warning the Complainant found personally upsetting may have been a cause of some distress. However the sensitive issue in concern had been discussed with the Complainant previously by her Line Manager and could not have come as a major surprise that it would be included by the OH Physician during the review.
5:9 The continuing request for a personal apology from one particular Area Manager when a comprehensive statement of regret for distress caused was being offered by the Respondent Corporately both in writing and verbally from Senior Management was a difficult position for the Complainant to adopt.
5:10 In conclusion therefore I do not find on the basis of all the written and oral evidence available that the inclusion by the Respondent of the sensitive issue at the OH review or the communication processes involved pre the OH review or the lack of a personal apology from one staff member were prima facia acts of discrimination, in the manner required by the Act, against the Complainant.
6: DECISION
I have investigated the above Complainants and make the following decision in accordance with section 79 of the Acts that the complainant has failed to establish a prima facie case of discrimination in relation to Disability.
____________________
Michael McEntee
Equality Officer
3 July 2015