THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
DEC-E2015-026
A Post Person
(represented by Ms Patricia Hill B.L,
instructed by St. John Solicitors.)
versus
A Postal Service
(represented by Mr Seamus Clarke B.L.
instructed by in house solicitors)
File reference: EE/2013/522
Date of issue: 9th June 2015
1. DISPUTE
This dispute involves a claim by A Post Person (“hereinafter referred to as the complainant”) that he was discriminated against by A Postal Service (“hereinafter referred to as the respondent”) on grounds of disability, in terms of section 6(2)(g) of the Employment Equality Acts, 1998-2011 (“hereinafter referred to as ‘the Acts”) when the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Acts. The complainant also claims that he was subjected to discriminatory dismissal and victimisation in terms of section 74 of the Acts.
2. BACKGROUND
2.1 The complainant is employed by the respondent as a general postal worker and was diagnosed with a psychiatric disorder, schizophrenia in 2002. The complainant contends that the respondent failed to afford him reasonable accommodation on a number of occasions over a period of seven years in terms of section 16 of the Acts, culminating in their subjecting him to a disciplinary process in 2008 while aware of his disability. The respondent rejects the complainant’s assertions in their entirety, submitting that they were not on notice of a disability linked to underperformance of the complaint but that they sought and acted on independent medical advice at all relevant times.
2.2 The respondent suspended the disciplinary process in 2009 and retired the complainant due to ill health. The respondent appealed this decision and was successful. The respondent advised the complainant that as he did not satisfy the criteria for retirement to ill-health that he would have to re-enter the previously suspended disciplinary process. At the request of the complainant the respondent suspended the disciplinary process pending the decision of this Tribunal.
2.3 The complainant referred a complaint under the Acts, to the Equality Tribunal on the 24th August 2010. The complainant referred a further complaint to the Tribunal on the 4th October 2013 citing further examples of the original complaint but now including victimisation alleging the respondent delayed an appeal process. On the 15th January 2014, in accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Peter Healy, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Hearing of the complaint took place on the 8th April 2014, the 20th May 2014 and the 25th July 2014.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant was employed by the respondent as a general postal worker since 1998 and he was diagnosed with a psychiatric disorder, schizophrenia, in 2002. The complainant submits that his condition qualifies as a disability under the Acts and that the respondent was aware of this disability since July 2002.
Events from 2003 to 2006
3.2 The complainant submits that the respondent gave no regard to his disability when they requested him to attend a number of disciplinary meetings in 2003, during a time when he had been hospitalised for his disability and was suffering from related effects. The complainant submits that upon discharge from hospital his treating doctor certified him fit for work. The complainant submits that the respondent failed to provide him with a proper rehabilitation programme following his discharge and that his manager thought he was simply being uncooperative and dismissed a request for transfer to night duties without proper consideration.
3.3 The complainant submits that, in 2005 following another period in hospital, the respondent provided him with the same inappropriate 2003 rehabilitation programme. The complainant says that the respondent again refused a request for transfer to night duties in 2006 without proper consideration. Instead of considering whether the complainant could be accommodated on night shifts or indoor duties, the respondent issued warnings to the complainant in respect of his attendance record.
Events leading to decision of early retirement.
3.4 The respondent issued the complainant with a serious offence warning in April 2008 in respect of failure to deliver items of mail, failure to attend for duty and failure to notify the office of inability to attend for duty. In September 2008 the respondent wrote to the complainant indicating that due to further absences, unsatisfactory attendance records and mis-sorts, the respondent was now considering disciplinary action, including dismissal. The complainant says he was extremely anxious to continue with his employment and wrote to the respondent in October 2008 assuring them of his commitment to his employment duties. At the hearing of this complaint, the complainant stated that this letter was written under the influence of his disability and therefore not credible. Regardless, the complainant was given six months to demonstrate his commitment to his duties. However, the complainant submits that due to his disability, difficulties he had previously experienced with his employment continued and he had a number of late and sick absences. By letter in February 2009 the respondent recommenced a disciplinary process with a recommendation of the complainant’s dismissal.
3.5 It is submitted by the complainant that the reactivation of the disciplinary process against him in circumstances where the complaints against him were principally ones of late absences and sick leave amounted to discrimination and victimisation on the grounds of disability. Further, had reasonable accommodation been made for the complainant, such as working night shifts or indoors, the complainant submits that it might well have been that he would not have had any difficulty with his absence record. The complainant submits that the respondent failed to consider these alternatives but rather focused solely on disciplining him. As part of the disciplinary process the complainant attended an oral hearing in April 2009 at which his union representative informed the respondent that the complainant had an underlying medical condition and should be given another chance. Following on from this hearing the respondent referred the complainant to the Chief Medical Officer (CMO) for assessment who then commissioned a report on the complainant from a Consultant in Liaison Psychiatry (Dr S).
3.6 The complainant submits that in 2009 a decision was made to retire him on the grounds of ill health without reference to an independent medical report of his own consultant and that there were conflicting medical reports from different consultants at the relevant time. The complainant contends that the procedure leading up to his retirement was unfair for a number of reasons including not being furnished with Dr S’s report, that Dr S’s report is too limited in it’s scope and that no evidence was considered on behalf of the complainant.
3.7 The complainant submits that the only option left open to him was to appeal the decision, which he did successfully. The complainant submits that his appeal was successful primarily due to a further assessment report from a Doctor who had been selected by the complainant.
3.8 The complainant submits that the respondent withheld the result of the successful appeal from him for a period of 2 years as a form of victimisation.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent argues that he vast majority of the complaint is out of time as provided for under section 77 of the Acts.
4.2 The respondent rejects the complainant’s assertions in their entirety. The respondent accepts that schizophrenia amounts to a disability under the Acts. However, the respondent submits that while the complainant had a number of absences related to medical matters, these absences were not, of themselves, the cause of the difficulties that the complainant had at work. The respondent submits that, it was the late attendances and failure to notify the company that he would not be in attendance that were at issue and that there was never any evidence medical or otherwise that the complainant was suffering from a disability which was causing these difficulties.
Issue of Reasonable Accommodation
4.3 The respondent contends that the complainant withdrew his request for a transfer to night shifts and provided this Tribunal with minutes of a meeting to support this contention.
4.4 The respondent provided this Tribunal with what they contend are their full medical records for the complainant and submit that this record does not bear out that the respondent was aware that the complainant was suffering from a disability that related to job performance issues.
4.5 Following his discharge from hospital in September 2003, the respondent submits that the complainant was certified as fully fit for work, by his treating doctor and that the doctors certification made no reference to the need for a rehabilitation programme. Regardless the respondent submits that they went beyond what was required and did institute a rehab programme and have provided the Tribunal with documentation as evidence of this programme. The respondent submits that the same circumstances apply to the complainants return to work in 2005.
4.6 The respondent submits that alternative duties were not considered for the complainant at times when he was certified as fit for work.
Allegation of Discriminatory dismissal
4.7 The respondent submits that it was only at the disciplinary hearing in April 2009 that the complainant made the case that an underlying medical condition was linked to the issues for which he was being disciplined and that the matter was then referred to the Chief Medical Officer (CMO), which the respondent contends, is a reasonable approach.
4.8 The respondent submits that the CMO sought an independent medical report and that it was entitled to terminate the complainant’s employment on ill-health grounds in light of the evidence in the report and that the process leading up to this decision was fair and reasonable.
4.9 The respondent submits that they did not withhold the successful appeal by the complainant of the decision to retire him on grounds of ill health. The respondent says that there was a delay for some months based on a number of reasons including the complexity of the case and an unfortunate administrative error by an individual who did not progress the case as quickly as they should have.
4.10 The respondent submits that if the disciplinary process continues following the decision of this Tribunal that the complainant will be afforded an opportunity to put forward medical evidence (in line with normal procedures) and that reasonable accommodation can be considered at that stage.
CONCLUSIONS OF THE EQUALITY OFFICER
5.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the complainant was discriminated against regarding his conditions of employment, dismissal and whether the respondent failed to provide reasonable accommodation in order to enable him to continue to work with the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.2 The complainant has alleged that he was discriminated against on the grounds of his disability by the respondent. “Disability” is defined in Section 2 of the Acts as meaning –
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
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”.
5.3 I find, from the medical evidence presented by both parties, that the complainant was suffering from a disability as defined under the Acts and this is agreed by the respondent.
5.4 The next matter I have to consider is whether the complaints were referred within the statutory time limits. Section 77(5) of the Acts provides as follows:
(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction".
Section 77(6A) of the Acts provides as follows:
For the purposes of this section -
(a) discrimination or victimisation occurs -
(i) if the act constituting it extends over a period, at the end of the
period"
The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal unless the acts relied on constitute ongoing discriminatory treatment. I must consider whether there was ongoing discrimination and whether all of the incidents were interlinked.
5.5 In considering the issue of whether the matters complained about constitute a chain of linked events or if all of the instances are separate events, I have taken into consideration the Labour Court reasoning in the case of County Louth VEC -v- Johnson EDA0712 which considered if separate acts of discrimination were linked. The Court stated:
"Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.”
In the instant case, I consider all instances of the respondent’s treatment of the complainant with regard to his disability to be linked. I must decide if a continuum of discrimination exists following examination of those instances.
5.6 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. 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.
5.7An employer is not obliged to retain an employee who is not fully competent and capable of doing the job s(he) is required to do. Regarding this Section 16 (1) of the Acts states:
Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….
(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.
However, Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:
(3) (a) For the purposes of this Act a person who has a disability
is fully competent to undertake, and fully capable of
undertaking, any duties if the person would be so fully
competent and capable on reasonable accommodation
(in this subsection referred to as ‘‘appropriate
measures’’) being provided by the person’s employer.
(b) The employer shall take appropriate measures, where
needed in a particular case, to enable a person who has
a disability—
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate
burden on the employer.
(complainant) In determining whether the measures would impose such
a burden account shall be taken, in particular, of—
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer’s
business, and
(iii) the possibility of obtaining public funding or other
assistance.
5.8 In relation to the practical requirements and obligations placed on employers The Labour court has found in Humphreys v Westwood Fitness Club [2004] E.l.R. 296 that:
.
“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered.The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable.The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions."
5.9 In the instant case the respondent has provided their full extensive record of the complainant’s medical history and supporting documentation on all of their processes employed in dealing with numerous health issues that arose during the complete period of the complaints employment dating back to 2002. It is not contested by the respondent that they were made aware that the complaint had been diagnosed with schizophrenia. At the hearing the CMO for the respondent made it clear that
· the respondent’s attitude to the complainant’s disability was that it had been treated in 2003/2005 and that the complainant had been certified as fit for work.
· The respondent “drew a line” under the disability and considered it as something that had occurred in the past.
· In 2008, when performance issues arose the respondent took account of the complainant’s medical records and obtained medical advice that the performance issues were not linked to his disability.
5.10 The respondent has provided extensive written evidence of their due diligence towards the complainant and his disability and I find the CMOs evidence, given at hearing, to be highly credible and fully explains the approach taken by the respondent. Taking into account all of the circumstances of this complaint and the evidence of the complainant, I accept the account put forward by the respondent.
5.11 Reasonable Accommodation and Conditions of Employment.
I find that,
• The respondent has at the relevant times made more than adequate enquiries so as to establish fully the factual position in relation to the complainant’s capacity. The respondent has provided extensive and detailed Occupational Health record and all medical correspondence from 2002 onwards for the complaint which demonstrates that they considered the complaint’s disability at appropriate times.
• The respondent was not required by the medical advice to provide a return to work programme for the complaint but did so anyway. Allegations by the complainant that they failed to implement this programme cannot be considered as failure to provide reasonable accommodation.
• The complainant did withdraw his request for night duties and it was reasonable for the respondent to comply with his wishes.
• Given the long period of time that the complainant had been working without incident for the respondent and taking into account relevant medical advice, it was reasonable for the respondent not to raise the issue of his disability with complainant every time the respondent was unhappy with the complainants work performance as to do so could be construed as discrimination. I note that the complainant’s evidence that at times (including at the hearing of this complaint) he was in denial that he had the disability. This presented significant problems for the respondent in attempting to involve the complainant in attempts to address his disability.
5.12 Discriminatory Dismissal
I find that,
• The complainant had been allowed a full opportunity to participate at every stage of disciplinary processes and allowed to present relevant medical evidence and submissions.
• When the complainant raised the issue of his disability the respondent immediately halted the disciplinary process and sought expert medical advice.
• The disciplinary process has not been resumed at the request of the complainant. Therefore, to-date, there is no evidence that the respondent has discriminated or victimised the complainant in this regard.
• The decision by the respondent to retire the complainant on the grounds of ill health was based on independent medical assessment and the decision was reasonable based on the findings of that assessment.
• I can find no evidence of discriminatory dismissal.
5.13 Victimisation.
In find that,
• A decision not to release a medical assessment to the complainant was reasonably based on further medical advice and does not amount to discrimination or victimisation under the Acts.
• I accept the respondent’s version of events in relation to the delay of informing the complainant of his successful appeal and accept that this delay was not victimisation.
• The complainant submits that the respondent has and will continue to discriminate against him by continuing with the currently suspended disciplinary process. It is well established that individuals with a disability are subject to the disciplinary procedures of their employers as long as their employer takes proper account of that disability, if necessary. In the instant case the respondent (who suspended the disciplinary process in order to get independent medical advice) has not yet had the opportunity to engage with the complainant regarding any necessary accommodations and I find that their actions to date provide no evidence of discrimination.
5.14 Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory treatment in relation to his conditions of employment, victimisation or discriminatory dismissal on the grounds of his disability.
DECISION OF THE EQUALITY OFFICER.
6.1 I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent has not discriminated against the complainant on the grounds of disability regarding his conditions of employment
(ii) the respondent has not failed to provide appropriate measures that would allow the complainant to continue to be employed by them
(iii) the respondent has not victimised the complainant in terms of Section 74 of the Acts.
(iv) the respondent has not dismissed the complainant for discriminatory reasons.
Therefore, I find against the complainant.
_______________________________
Peter Healy
Equality Officer
9th June 2015