EMPLOYMENT EQUALITY ACTS 1998-2015
Decision DEC – E2016 – 116
PARTIES
A Worker
and
A Government Department (represented by Mr Peter Leonard, B.L., instructed by the Chief State Solicitor)
File Reference: EE/2014/341
Date of Issue: 4th August 2016
Keywords: disability – standing – S. 2(c) of the Acts – discrimination – S. 8 – comparator pool pursuant to S. 6(1) – harassment – S. 14A(2) defence – reasonable accommodation – S. 16 – victimisation – S. 74(2).
1. Claim
1.1. The case concerns a claim by Mr A. that the Government Department which employs him discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2015, in terms of failure to provide reasonable accommodation, direct discrimination, and harassment. Mr A. further complains of victimisation pursuant to S. 74(2) of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 24 June 2014. A submission was received from the complainant on 31 August 2015. A submission was received from the respondent on 26 January 2016. On 8 February 2016, in accordance with his powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 31 March 2016, which was adjourned and reconvened on 27 July 2016 to allow an occupational health expert from the office of the Chief Medical Officer to give evidence.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that he suffers from motion sickness (kinetosis), which, he submits, is a disability within the meaning of the Acts. His condition has been certified both by his GP and the respondent’s Chief Medical Officer.
2.2. The complainant works in the respondent’s decentralised office in the southeast of Ireland. He states that his position required him to travel to Dublin regularly for a variety of meetings. The complainant states that he uses videoconferencing where possible, but that this is not always feasible. However, it proved impossible for the complainant to use the bus to travel to Dublin, as the movements of the bus would bring on his condition. He further states that he attempted to use the train once, in December 2013, but that again he experienced the symptoms of motion sickness after about 40 minutes, and despite having taken medication against it. He states that he needed to disembark the train at a stop in Co. Wicklow. According to the complainant, only driving his own car is an option for him to travel, as he can then take breaks and get fresh air as needed.
2.3. The gist of the complainant’s complaint is that the respondent only pays him the equivalent of the cost of public transport for these car journeys, which the complainant says leaves him substantially out of pocket in terms of the maintenance and depreciation of his car. It is the complainant’s case that the respondent’s refusal to pay him the full mileage rates as per the various circulars which govern travel by civil servants amounts to a refusal of reasonable accommodation of his disability.
2.4. He also submits that, in his view, the attempt of the respondent to prevent him from attending high-level meetings in Dublin by not paying him full mileage rates constitutes direct discrimination vis-à-vis a worker without a disability. However, nowhere in his statement does the complainant say that the respondent actually prevented him from attending these meetings.
2.5. Mr A. also says that he made a transfer request to the respondent’s ICT section, but that his transfer request was only accommodated in February 2015, when he transferred to another division. The complainant does not state where either division was located or what the impact on his travel duties and disabilities were or would have been.
2.6. The complainant states that it was extremely difficult for him to declare his disability to his line manager, the Personnel Officer and his Assistant Secretary. He does not state when he did so.
2.7. He does state, however, that once he disclosed his disability, he was subjected to continuous harassment, being prompted again and again to take the bus. He does not state whether he ever made a complaint about feeling harassed to the respondent, and what response he received.
2.8. In terms of his complaint of victimisation, Mr A. states that in a recent promotion competition, he was not shortlisted for interview, and when he asked for feedback, the board member he spoke to was unable to explain how marks were broken down by competency, and why the complainant did not receive top marks. He further states that although the respondent originally planned to shortlist 18 candidates for interview, only 17 were so shortlisted. It is the complainant’s concern that he was excluded from being shortlisted because of his disability, and specifically because he took the within case against the respondent.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It accepts that the complainant suffers from motion sickness, but states that it was advised of this fact only late in 2013. The complainant had moved to the decentralised location in 2008 on promotion to Assistant Principal Officer. The respondent submits that due to the fact that it has a total of four decentralised locations, including on the Western seaboard, that it adopted a policy to only pay its officers public transport for travelling to Dublin for meetings. The respondent states that the complainant took issue with this policy ever since he relocated to the Southeast in 2008, but only disclosed his motion sickness in 2013. According to the respondent, the complainant did not even declare his condition on the “count me in” survey which is carried out for the purpose of establishing the statistics of disabled workers in the organisation.
3.2. According to the respondent, in late 2010, the complainant began to claim an overnight rate for any Dublin-based meeting which started before 10:30am. While this arrangement was never formally approved by his line manager, the respondent states that the complainant’s line manager did approve these claims.
3.3. The respondent further states that the complainant frequently cited financial difficulty as a reason for not travelling to meetings. The respondent also states that the complainant was under an obligation to seek the consent of his line manager before travelling to meetings.
3.4. In August 2013, according to the respondent, the complainant arranged a meeting in Dublin which was not pre-approved by his line manager, and which his line manager believed to be unnecessary. The complainant’s line manager was on annual leave when the meeting took place, for which the complainant claimed overnight subsistence. Upon his return from annual leave, the line manager refused to approve the travel claim. Specifically, the complainant’s line manager expressed the opinion that the meeting only warranted a 10-hour subsistence rate.
3.5. On foot of that response, the complainant escalated the matter to the relevant Assistant Secretary in corporate services division and to the Personnel Officer. When both of these refused to overrule the complainant’s line manager on the matter, the complainant informed them of his disability. This was in late September 2013. The complainant then escalated the matter to his own Assistant Secretary, who also refused to overrule his line manager.
3.6. The complainant was subsequently referred to the Chief Medical Officer (CMO) of the Civil Service Occupational Health Department. The CMO confirmed the diagnosis of motion sickness, with the addendum that the complainant might also suffer from anxiety. She also noted that when she recommended treatment of the condition to the complainant, he did not seem keen on those treatment options for the moment. She nevertheless recommended treatment, use of the train service, use of teleconferencing and minimising travel.
3.7. Based on the recommendations of the CMO, the respondent submits that it already provides reasonable accommodation to the complainant. In particular, it notes that the complainant was never prevented from travelling in his own car, albeit that he was reimbursed at public transport rates, and also that he enjoyed the overnight subsistence rate for meetings that started before 10:30am, which is not available to other staff in the Department.
3.8. The respondent rejects the complainant’s claim that it discriminated against him compared with a non-disabled worker and notes that the same policies apply to all workers.
3.9. With regard to the complainant’s claim of harassment, the respondent notes that he never made an internal complaint of harassment, and also that the examples he cites for harassment only related to his mode of travel and never to his disability. The respondent states that it has had a dignity at work policy in place since February 2015.
3.10. In terms of the complainant’s complaint of victimisation, the respondent states two interview board members of the internal competition for Principal Officer in which the complainant was unsuccessful did not know the complainant. It further states that the average total score of those shortlisted, prior to interview, was 512, whereas the complainant’s score was 430. The respondent also asserts that the complainant was not the 18th candidate in order of merit; that is, the interview board did not decide to shortlist only 17 candidates specifically to exclude the complainant from consideration.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminated against, or victimised, within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. The respondent disputed that the complainant suffers from a disability within the meaning of the Acts. I am however satisfied that by itself, motion sickness (kinetosis), although it affects as many as 40% of the population according to Dr L., the expert witness from the office of the Chief Medical Officer, can be viewed as a disability within the meaning of S. 2 (c) of the Acts, which defines disability as a “malfunction, malformation or disfigurement of a part of a person’s body”. It is my understanding that motion sickness arises out of a malfunction of balance systems located in the inner ear. That said, the reports by the complainant’s own GP and by Dr L. , as well as Dr L.’s direct evidence to the Commission, show that the complainant was not very much affected by this condition, so in terms of being impacted by a disability which comes under the definition of the Acts, the complainant would be at the low end. The complainant disputed this throughout, but this leads into questions of the complainant’s credibility, which I will discuss later.
4.5. The complainant’s GP wrote of “symptoms suggestive of motion sickness”. Dr L. noted by the time she reviewed the complainant as an occupational health expert, no treatment of either the condition itself, or the complainant’s anxiety about falling ill, had been considered or been started. Dr L. confirmed in direct evidence that it was her professional opinion, formed during her review of the complainant, that he should be able to use the train. She did not dispute that the complainant was experiencing motion sickness.
4.6. So in terms of whether the complainant has standing to bring a complaint on the disability ground, I am prepared to accept that the complainant has a disability within the meaning of the Acts and is therefore entitled to bring a complaint. This is not to bar the complainant from accessing justice unfairly, but I should note that it is based on a very lenient interpretation of the evidence before me and the requirements of the Acts.
4.7. In terms of the complainant’s complaint of direct discrimination, it is clear that all staff in the entire government department for which the complainant works are held to the terms of Circular 11/82, which prescribes that the cheapest form of transportation is to be taken on all official travel, which is interpreted as taking public transport, unless specific circumstances exist for the use of private motor cars. The respondent implements this Circular as meaning that all travel from regional centres to Dublin need to be done on public transport, since excellent public transport links exist on these routes. In the case of the complainant’s office location, there is a choice between equally convenient bus and train routes. Travel between regional centres may be undertaken by car, as transport connections are not as good, and time savings from the use of a car come to be a factor.
4.8. These policies are the same for all staff of the respondent, and therefore there is no case that the complainant, on the basis of his disability, is treated in any way less favourably. I am further satisfied that the correct comparator group, for a correct assessment of non-disabled workers who are in a “comparable situation” as the complainant pursuant to S. 6(1)(a) of the Acts, is the staff of the respondent, since these are the workers the respondent has control over, and who are affected by its management decisions. The complainant asserted that in the Civil Service at large, more generous T&S policies still applied and that his comparators ought to be civil servants outside of his own organisation. Not only is this erroneous in terms of the control test set out above, it is not even factually correct. Many Civil Service organisations introduced very similar policies on travel and subsistence at the onset of the economic crisis. For all of these reasons, the complainant’s discrimination complaint must fail.
4.9. In terms of the complainant’s complaint that he was refused reasonable accommodation, by not being paid full motor mileage rates for the use of his own car whilst travelling to meetings in Dublin, four different aspects of the evidence provided by the parties are important:
4.10. Firstly, the complainant had a long-running argument about the change in travel policy with his managers, long before he disclosed any disability. Whilst it is mostly the respondent who relies on this argument, it is important to note that this is evident from the copious materials the complainant himself submitted in evidence. Prior to his disclosure of his disability, these arguments were entirely economical and about loss of income. It was only after several years that the complainant disclosed his disability in October 2013 and shifted the argument to the provision of reasonable accommodation. The respondent’s doubts over the existence of any disability on the part of the complainant probably originate from this context.
4.11. Secondly, the respondent made the argument that the complainant was not prevented from using his own car, provided he only claimed the fare of public transport in his expenses. Furthermore, the complainant was very generously accommodated with overnight stays in Dublin, to ease his travel stresses, an exception to the respondent’s policy which his non-disabled colleagues did not enjoy. He was also allowed great leeway in scheduling his meetings to combine meetings on a single trip. This needs to be seen in a context where the respondent would be wholly within its rights, in terms of the obligations imposed on it by S. 16 of the Acts, to transfer the complainant to a position with no travel needs, or to restructure the complainant’s current role so as to obviate travel, either of which may be a much more cost-effective way of the respondent to discharge its obligations under the Acts. This is also relevant in paragraph 4.16 below.
4.12. Thirdly, I am satisfied from Dr L.’s direct expert evidence on the second day of hearing, that his condition did not affect the complainant very much. She noted again that he had never received any treatments, either for the motion sickness itself, or psychological treatments to ease any related anxieties, and also that whilst travelling on the train, the complainant would have been able to stand up and walk around to ease his symptoms. In her evidence, she also raised the fact, which she said struck her as curious, that the complainant would start to experience symptoms after 20 minutes of travelling on the bus, but that he stated he would take a break after an hour of travelling in his car, not to ease symptoms, but just to take a break.
4.13. In her evidence, Dr L. also adhered to her statement in her final report on the complainant’s condition, that in her opinion he ought to be able to travel by train. Dr. L. stated in evidence that her consultation notes showed that the complainant said to her at the material time that he had no problem taking the train.
4.14. The complainant disputed this by saying that at the time of the consultation he had not taken the train for several years, and thus could not know how it would affect him. He also stated that his symptoms affect him badly whenever he is travelling by train.
4.15. I prefer Dr L.’s evidence on this point, not only because it is independent expert evidence, but also because the history of the mileage-rate dispute between the complainant and the respondent impairs the complainant’s credibility, and because it is difficult to believe, as Dr L. pointed out, that travelling in a motor car, where a lot of motion happens from braking, accelerating, going around narrow curves, bumps in the road etc., should have virtually no impact on the complainant’s condition, whereas travel on the train, where all of these issues are greatly reduced by reason of technology, should be unbearable. Whilst I am willing to believe that the complainant does indeed suffer from motion sickness, and whilst I am willing to accept that motion sickness can be a disability within the meaning of the Acts, it appears to me that the complainant exaggerated some of his symptoms to fit with a demand which he was desirous to achieve for other reasons.
4.16. This is also supported by the fourth relevant point of evidence, namely that the complainant, in the evidence of his then manager, constantly pushed for more travel rather than less, and that the complainant applied for a transfer to a position which would have been located in Dublin and which would have necessitated daily travel from his home in the Southeast. The complainant also stated, in response to a direct question from myself as to why he would not seek transfer to a position that needed no travel or only very little travel, that he did not wish to jeopardise his career. Whilst the provisions of the Employment Equality Acts would prohibit the respondent from letting any such request by the complainant impact on his promotion prospects, it also shows the complainant’s condition, bad as it allegedly was, did not override his career ambitions or other considerations. This further compromises the complainant’s credibility on this point.
4.17. For all of these reasons, I reject the complainant’s evidence as to the impact and severity of his disability and prefer the evidence of Dr L. and the respondent witnesses. To summarise, whilst I accept that the complainant does have a disability within the meaning of the Acts, I am also satisfied that it is very low-impact and that the accommodations in terms of travel which he currently enjoys are more than enough to meet any responsibility the respondent might have pursuant to S. 16 of the Acts.
4.18. In terms of complainant’s complaint of harassment, there was no evidence of harassment within the meaning of the Acts, although the complainant did feel harassed by his then manager in terms of the long-running dispute over mileage rates that is referenced in the preceding paragraphs. Sharp words were written in emails on both sides as tempers rose, but I did not find any harassing remark by the complainant’s manager which would fit the definition set out on the Acts. Furthermore, the complainant confirmed that he never used the respondent’s dignity at work policy to make a complaint, so the provision of S. 14A(2) of the Acts avail the respondent regardless. Accordingly, the complainant’s harassment complaint must also fail.
4.19. Finally, to turn to the complainant’s complaint of victimisation, in terms of a competition for promotion to Principal Officer. Whilst the complainant alleged that his then manager said to him: “If you don’t drop the travel case, you’ll never make PO”, this manager, in direct evidence, disputed ever making such a remark. The complainant scored 19th out of 33 applicants, out of whom 17 where shortlisted. The cut-off marks for panellist 17 where 490, whereas the complainant scored 430. This is wholly consistent with the fairly middling performance ratings which the complainant received, and also the two “fitness for promotion” rankings which the complainant received. I put considerable store in the fact that not only the manager who is alleged to have made the above remark, but also another manager two years later, rated the complainant’s suitability for promotion at level 3 out of 5 categories. Both managers, and their line managers, rated the complainant as “qualified for promotion” (as compared to “exceptionally well qualified” or “well qualified”), which states that “Candidate is effective in their current role and occasionally demonstrates the skills and qualities needed to perform at higher level”. [All emphases in the given formats in the original.]
4.20. Apart from that there is no evidence that the members of the interview board had knowledge of the within complaint, it seems clear from the evidence that the complainant did not succeed in this competition because he was a middling performer, compared to his colleagues, and that his lack of success had nothing to do with adverse treatment on foot of lodging the within complaint. Accordingly, the complainant’s case for victimisation must also fail.
5. Decision
5.1. This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
5.2. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Employment Equality Acts 1998-2015, that the respondent did not discriminate against, or allow the complainant’s harassment, and did not refuse to provide reasonable accommodation to the complainant on the ground of his disability, and that it did not victimise the complainant.
______________________
Stephen Bonnlander
Equality Officer/Adjudication Officer
4 August 2016