DEC-E2015-083

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2015-083

PARTIES

A Worker

(Represented by Civil Public and Services Union)

AND

A Government Department

(Represented by the Chief State Solicitors Office)

File reference: EE/2013/307

Date of issue: 11/09/2015

HEADNOTES: Employment Equality Act 1998 Section 31 – Indirect Discrimination and Council Directive 2000/78/EC of 27 November 2000 – Article 2 (2)(b) – Indirect Discrimination.

1 DISPUTE

1.1 This dispute concerns a claim by the Complainant that he was discriminated against by the Respondent on the grounds disability contrary to section 31 of the Employment Equality Act 1998 and contrary to Council Directive 2000/78/EC of 27 November 2000 – Article 2 (2) in the manner with which he was suspended from his employment on 16 July 2012.

1.2 The complainant referred his claim to the Director of the Equality Tribunal on 28 June 2013 under the Employment Equality Acts. As the claim was brought outside 6 months on 20 December 2013, the period of time to bring the proceedings was extended on the basis of reasonable cause. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and, I, Emile Daly, an Equality Officer, was appointed to hold an investigation into the matter. As part of my investigation I proceeded to an oral hearing on 13 July 2015.

2 COMPLAINANTS' SUBMISSION

2.1 The Complainant started work for the Respondent on 7 January 2002 and his employment is continuing. This is not in dispute.

2.2 The Complainant states that at the time of the alleged act of discrimination, he was working as a clerical officer in an office of the Respondent, situated in the midlands.

2.3 The Complainant was suspended from his duties on 16 July 2012 pending an investigation into an allegation of misconduct

2.4 As a result of the manner in which he was suspended, the Complainant states that the experience of being suspended was worse for him than for a non-disabled employee, in that when instructing him to leave the premises, the Respondent failed to take account of his disability. His net assertion is that, as he is unable to drive, and this arises only because of his disability, he was not able to leave the work premises independently. This meant that he suffered a particular disadvantage, as the time which it took him to leave the premises was greater than an employee who could travel independently. The effect of this meant that his suspension became known to his fellow employees and as a result he felt self-conscious, humiliated and that his dignity had been denied. The failure to take account of the effects of his disability, resulted in a greater impact of the act of suspension, upon him, than would have been on a non-disabled person. This treatment amounted to an act of indirect discrimination.

2.5 In order to ensure that the Complainant was treated in a like manner to non-disabled employees, he stated that the suspension, should have instead taken place at the end of the working day or outside the work premises or that the Respondent should have arranged an immediate lift for him to be taken away from the premises. In any event the Complainant claims that the suspension should have been conducted in a manner that did not take so long, did not leave him the position that, despite being asked to leave the premises under a cloud of suspicion, that he was unable to leave. And as a result of this, the fact of his suspension was made known to his colleagues, which would not have occurred if he had been able to exit the premises quickly.

3 RESPONDENT'S SUBMISSION

3.1 The Respondent accepts that the complainant started working for the Respondent on 7 January 2002.

3.2 The Respondent accepts that the complainant was suspended from duties on 16 July 2012 and that this arose from an allegation of misconduct, namely that he had made a false claim under a government grant on behalf of his brother

3.3 The Respondent states that at all times on the 16 July 2012, their officers in conducting the suspension, applied the provisions of the Civil Service Disciplinary Code and at all times were conscious of and upheld the dignity of the Complainant

3.4 The Respondent denies that the manner in which the suspension was carried out was done in a manner which indirectly discriminated against the Complainant

3.5 The Respondent states as, an alternative defence that if there was indirect discrimination in the manner in which the suspension was carried out on 16 July 2012, that the actions of the Respondent, on the day in question, were done in pursuance of a legitimate objective and the means used were proportionate, necessary and objectively justifiable.

4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

4.1 I have to decide if the Respondent indirectly discriminated against the Complainant on 16 July 2012 in the manner with which he was suspended from his work duties.

4.2 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.

4.3 No defence has been raised by the Respondent on jurisdiction. There is no defence that the act of suspension is not a condition of employment within the meaning of section 8 of the Equality Act 1998. No defence has been raised that the Claimant’s inability to drive was not as a result of his disability. No defence has been raised denying the applicability of section 31 of the Equality Act 1998 or Article 2 (2) (b) of Council Directive 2000/78/EC of 27 November 2000 to the facts.

4.4 The defence is firstly that there was no disadvantage proven by the Complainant and secondly that if there was, that it was objectively justified in that it was reasonable and that it arose in pursuance of a legitimate aim

4.5 Section 31 of the Equality Act 1998 provides:
31.—(1) Where a provision (whether in the nature of a requirement, practice or otherwise) relating to employment—
(a) applies to all the employees or prospective employees of a particular employer who include C and D or, as the case may be, to a particular class of those employees or prospective employees which includes C and D,

(b) operates to the disadvantage of C, as compared with D, in relation to any of the matters specified in paragraphs (a) to (e) of section 8 (1),

(c) in practice can be complied with by a substantially smaller proportion of the employees or prospective employees having the same relevant characteristic as C when compared with the employees or prospective employees having the same relevant characteristic as D, and

(d) cannot be justified as being reasonable in all the circumstances of the case,

then, subject to subsections (4) and (5), for the purposes of this Act the employer shall be regarded as discriminating against C, contrary to section 8 , on whichever of the discriminatory grounds gives rise to the relevant characteristics referred to in paragraph

4.6 Article 2 (2) (b) of the Council Directive 2000/78/EC of 27 November 2000 provides as follows:

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or

(ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.

5. Evidence

5.1.1 For the purpose of clarity the witnesses that are referred to are; on the Complainant’s side; the Complainant and his brother GH and on the Respondents side; AB, CD, EF and IJ

5.2 Complainant’s Evidence

5.3 The Complainant gave the following evidence:

5.4 At 10.10 am on the morning of 16 July 2012, he was working at the reception area of the work place with a colleague when he noticed AB, an Assistant Principal Officer with the Respondent enter the premises and ask for CD, a High Executive Officer with the Respondent.

5.5 At 10.45 am he was approached by CD and was requested to accompany her and to attend a meeting. They went down an elevator to the underground floor and into a meeting room, and AB and EF, a Principal Officer with the Respondent, were in the meeting room. He asked them what was this about and he was given an envelope and was instructed to read the contents. The letter was a letter of suspension based on grounds of specified misconduct. The Complainant protested against the allegation but was told that there would be a meeting at which he could give evidence then. He stated that EF put up her hand in a gesture to stop him from talking. He was told that he must go back to his desk, log off from the IT system, surrender his security card, gather any personal belongings and leave the premises. CD told him that he should contact his trade union.

5.6 They left the meeting room and Complainant took the elevator up to the ground floor. AB and EF were at the elevator doors when it opened at the ground floor level. CD was in the reception area. AB accompanied the Complainant to his desk and waited there with him as he logged off the IT system and surrendered his security cards. The evidence of the Complainant was that, as he had been told he had to leave the building, he became anxious as he in not able to travel independently and he was concerned as to how he could arrange a lift home. Meanwhile he was very conscious of his work colleagues becoming aware that he was under suspicion and that he was being exited from the building. The main area that the Complainant worked was in the open plan reception area and a room off this area. He states that the open plan nature of the reception area meant that the fact that he was being excluded from the premises were obvious to his co-workers, which exacerbated his anxiety.

5.7 The Complainant was unable to be collected initially so he had to telephone around various members of his family to get an alternative lift. He tried to contact six people, but to no avail.

5.8 When he was able to contact one of his brothers, he arranged for that brother to collect him and asked him to come as quickly as possible because he had to leave work immediately. He had spent approximately 30 minutes attempting to get a lift. He said that even though he was clearly having difficulty getting a lift, no one from the Respondent side offered him a lift or attempted to help him.

5.9 Colleagues who were using the printer in the open plan area, became aware that something was happening and the Complainant felt very exposed, but being unable to leave the premises, was confined to the building. It was raining outside so he was unable even to wait outside.

5.10 As soon as the Complainant saw his brother arriving in the car he went out towards the reception area and AB followed him.

5.11 As he left the premises he felt very conscious because it was a strange time for him to be collected and because the building is an L shape with a large windows he was very conscious of the fact that his co- workers could see him trying to get into his brother’s car. This task proved to be difficult, because it was raining and because the car has a low design and because his brother was unused to assisting the Complainant getting in and out of cars.

5.12 The Complainant was frantic at this stage and felt undermined and degraded.

5.13 A co-worker shouted from a window asking him whether everything was alright. This co-worker then came out to help him and spoke some words of support and comfort.

5.14 Unable to get into the car himself, the Complainant’s brother then had to lift the Complainant directly into the car, which further embarrassed him.

5.15 As soon as he arrived home, he was upset and was anxious to get into the house and when exiting the car he hit his head and jaw off the side of the car and injured himself.

5.16 The Complainant’s brother GH, gave evidence as follows:

5.17 GH received a phone call from his brother, the Complainant, who was in an anxious state at his place of work. The Complainant told him that he had to leave his work urgently and that he needed a lift

5.18 GH said that the journey took him approximately 25 minutes to make

5.19 GH said that when he arrived, the Complainant was in the reception area and that there were two people in the reception area with him

5.20 GH stated that it was raining and that he had difficulty getting him into his car and that he saw that workers in the building were looking down at the commotion

5.21 GH states that a colleague of the Complainant called to them out the window and then came down to help the Complainant and spoke words of comfort to the Complainant.

5.22 At all times the Complainant was anxious and wanted to leave as soon as possible. He seemed to be in a state of shock.

5.23 In the car the Complainant refused to explain to GH what had occurred, he just wanted to get home and be on his own

5.24 Outside the Complainant’s home, the Complainant injured himself when he was attempting to exit the car.

5.25 The Complainant gave further evidence on the effect that the event had on him.

5.26 He stated that he is a different person from that day

5.27 He stated that he is physically and mentally damaged by what occurred on that day.

5.28 He stated that he replays the mornings events in his mind still

5.29 He stated that despite the fact that he has since returned to work and despite the fact that the misconduct allegation was not upheld by the investigation that followed, has not changed the fact that he has been damaged by what happened that day.

5.30 He stated that his colleagues attitude towards him has changed, that it is clear that some regard him as being guilty in some way, even though the investigation ultimately cleared his name. He states that people avoid him.

5.31 He stated that his mobility has worsened and that he gets low in spirit.

5.32 He does not take issue with the right that the Respondents had to suspend him. He takes issue with the failure by the Respondent to take account of the different impact that a decision to suspend and decision to escort him off the premises would have on him. He could not leave the building as quickly as a non-disabled employee would, he could not use a side door, which might minimise the spectacle of the suspension. He states that there were alternative approaches that would have minimised the impact that the decision to suspend had upon him; namely they could have carried out the suspension at the end of the day, when he was due to be collected anyway or they could have brought him off the premises at lunchtime and arranged a lift for him to get home.

6. The Respondent’s Evidence

6.1 The Respondents evidence was as follows:

6.2 EF, a Principal Officer in the Human Resources of the Respondent, on Thursday 12 July 2012, was informed by IJ, her immediate line manager, that there was a serious matter that he required her to attend to the following Monday morning. This task was to go to Offices premises where the Complainant worked and to suspend the Complainant. He gave EF a letter of suspension which was addressed to the Complainant and instructed her to serve this letter on him on the Monday.

6.3 EF stated that she knew, before she attended the Complainant’s place of work that the Complainant used a wheel chair because IJ had told her this.

6.4 EF stated that she contacted AB and asked her to make contact with CD, who was a Higher Executive Office in the HR department.

6.5 CD and AB were instructed by EF to ensure that the meeting room was wheel chair accessible

6.6 EF stated that she had experience of carrying out one suspension prior to this. She stated that procedures of how to conduct a suspension, are not specified in Article 34 of the Civil Service Disciplinary Code but she stated that the mode of suspension that was used in this case was the same as that used in other suspensions, bar having to ensure that the room was wheel chair accessible.

6.7 EF stated that on arrival to the Office she found that one meeting room was glass panelled so she found this to be unsuitable for a confidential meeting. She checked the other meeting room on the basement floor and found it to be suitable and she instructed that the Complainant be requested to attend a meeting

6.8 EF stated that when the Complainant entered the room that she, AB and CD were present. She stated that she gave him the letter of suspension, she accepts that he attempted to protest his innocence but she informed him that there would be a formal investigation in due course, during which he would be entitled to make his case. She denied putting up her hand as a gesture to stop him from talking. She stated that informed the Complainant that he needed his postal address and telephone number. She stated that he would need to log off from the IT system and that he was to surrender his security pass and then leave the premises.

6.9 EF stated that she remained in the room while AB and CD accompanied the Complainant up to his room. She stated that the reason for this was that she needed to contact the IT department to cut off his access immediately. She stated that this took approximately 20 minutes.

6.10 EF stated that she stayed in the room until this was complete, she did not go with the Complainant immediately but accepts that after 20 minutes and having ensured the Complainant’s access to the IT system was suspended, she went upstairs to the reception area and went into the room where the Complainant was waiting to be collected. The Complainant’s waiting period estimate of thirty minutes appears to be corroborated by this evidence.

6.11 EF stated that she was instructed by IJ not to get into a discussion with the Complainant about the substance of the complaint and therefore did not, when he protested the contents of the letter.

6.12 EF accepts that she observed him leaving the building.

6.13 When asked about the choice of timing, EF stated that she went on that Monday morning as she had been instructed to do by IJ.

6.14 EF stated that at all times she respected the dignity of the Complainant

6.15 On behalf of the Respondent, AB gave evidence as follows:

6.16 AB is an Assistant Principal Officer with the Respondent

6.17 AB received a phone call from EF on Friday 13 July 2012 instructing her to be present at the Department Office for a meeting that would take place on the following Monday morning

6.18 AB stated that she was present in the meeting room with EF, CD and the Complainant, when the Complainant was suspended.

6.19 AB stated that the tone of the room was respectful. That this was a serious matter and it was not a nice thing to have to do. AB stated that it was explained to the Complainant that an investigation would commence and that during the period of suspension that he would be paid in full.

6.20 AB stated that after the meeting had concluded, that she and CD accompanied the Complainant back to his desk and that she had remained in the room with him until his brother came to collect him. She accepted that this period of time could have been over 30 minutes.

6.21 AB stated that she asked him whether he had a lift home. She stated that she offered to help him but that he explained that he would have to make some phone calls to arrange to be collected.

6.22 AB denied that there was any commotion or spectacle caused by the period of time that elapsed between the meeting and the Complainant’s departure from the building.

6.23 AB denied looking at him during the period of time that he made phone calls or collected his belongings. She stated that he requested whether he should post an envelope that he had prepared prior the meeting and she said that he could.

6.24 AB stated that she stayed with him for the period of time between the meeting and his departure from the building. She stated that this was protocol and she followed it.

6.25 She denied preventing him from touching the desk, and stated that this would not have been possible, as she had in fact told him to ensure that he collected any personal belongings from the desk. She denied standing over him while he made the phone calls.

6.26 She stated that she had followed instructions and that there had been no consideration of carrying out the suspension in a different mode, to take account of the Complainant’s disability. Specifically she denied that it was considered to hold the meeting at the end of the day or outside the work premises.

6.27 AB denied telling the Complainant to either take his time or hurrying him out of the building

7.1 Reasons for the Decision

7.2 As no defence was raised, that the treatment of the Claimant on the day, does not comes within the definition of a “condition of his employment”, within the meaning of Section 8 of the Acts, I find that the treatment does come within definition of conditions of employment.

7.2 The conflicts of evidence in this cases are both slight and immaterial to the complaint being made.

7.3 It is not denied that the Respondent carried out this suspension in accordance with the Civil Service Disciplinary Code, without taking into account that the Complainant was unable to exit the work premises quickly, something that presumably is the desire of most, if not all employees, when they are suspended from their employment for reasons of alleged misconduct.

7.4 I accept the Complainant’s evidence that because he cannot travel independently (and this arises solely as a result of his disability) that the period of time that it took to organise his brother to collect him was well over thirty minutes. Thirty minutes during which the fact of his suspension became conspicuous within the work place. I accept the evidence, because it was not contested, that during the intervening thirty minutes, the Complainant’s work colleagues became aware that some action was being taken against him. This is supported by the, again, uncontested evidence that a colleague of the Complainant called to him through a window from an upstairs office, when he was outside attempting to get into his brother’s car. This colleague then came out to offer some support to the Complainant.

7.5 I fully accept the evidence of the Respondent witnesses; that they sought to uphold the dignity of the Complainant and I fully accept their evidence in this regard. I certainly do not believe that there was any malice or intentional unkindness shown to the Complainant during the suspension. I accept the evidence that they followed the Civil Service Disciplinary Code and applied a mode of suspension that would have applied to all other employees. I accept also that they were instructed to do exactly what they did and in the manner which they did it.

7.6 However suspending an employee is a serious act; both for the person being suspending and those carrying out the decision. The repercussions of the Complainant not being able to exit the building quickly before he had to face his fellow colleagues, is one that arose only because of his disability. Another (able-bodied) employee could have used a different exit door or could have gathered his belongings quickly before either exiting the building through a side door and/or driving away independently. The period of time, which at over 30 minutes is not in dispute, could have been avoided. The manner of the suspension; being carried out in the middle of a Monday morning, on the work premises, without providing a lift home, so that he could leave quickly, exacerbated the effect that the suspension had on him.

7.7 I accept the evidence of the Respondent witnesses, that they treated the Complainant as they would have treated any other employee, when a suspension is taking place. However I must bear in mind the decision of the European Court of Justice in the case of Gillespie v. Health and Social Services Board [1996] ECR 475, which held that discrimination can involve the application of different rules to comparable situations or the application of the same rules to different situations.

7.8 I accept that the Complainant suffered a particular disadvantage, as the time which it took him to leave the premises, from the glare of attention, was greater than an employee who could both exit the premises independently and travel independently and I accept that this was a result of his disability.

8. DECISION

8.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:

8.2 The Respondent did discriminate against the Complainant on the grounds disability contrary to section 31 of the Employment Equality Act 1998 and contrary to Council Directive 2000/78/EC of 27 November 2000 – Article 2 (2) in the manner with which he was suspended from his employment on 16 July 2012. In doing so I follow the decision of the European Court of Justice in the case of Gillespie v. Health and Social Services Board [1996] ECR 475 which held, at paragraph 16, that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations.

8.3 I order the Respondent to pay the complainant €8,000 in compensation for the discriminatory treatment suffered. I take into account that there were good grounds to suspend him but not to suspend in the manner which they did. The compensation reflects the fact that, had the Complainant not suffered from a disability, he would have still been upset and shocked by the fact of the suspension, for which he cannot be compensated, as there was nothing inherently wrong with the decision to suspend. The figure of compensation awarded is to compensate him for the difference in the effect that the suspension had on him by virtue of the fact that he was unable to abate the trauma of the suspension, as he was unable to leave the building quickly and without being observed.

8.4 The fact that this was a once off event is also a matter that I take into account in making the award but to balance this, I also take into account the fact that event, albeit once off, had a significant and deleterious impact on the physical, mental and emotional well-being of the Complainant.

8.5 This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.

____________________

Emile Daly

Equality Officer