ADJUDICATION OFFICER CORRECTION ORDER

PURSUANT TO SECTION 88(2) EMPLOYMENT EQUALITY ACT, 1998

This Order corrects the original Decision issued on 25/11/16 and should be read in conjunction with that Decision.

Adjudication Decision Reference: ADJ-00002960

Complaints/Disputes for Resolution:

Date of Adjudication Hearing: 21/10/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly B.L.

Procedure:

In accordance with Section 13 Industrial Relations Act, 1969 and Section 77 Employment Equality Act, 1998,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Attendance at Hearing:

Complainant’s Submission and Presentation:

Respondent’s Submissions

Conclusions and Findings:

Decision:

Dated:   25 November 2016

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002960

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 21/10/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Attendance at Hearing:

 Complainant’s Submission and Presentation:

Complainant’s Submission and Presentation:

CA 3971-001 Discrimination on the grounds of Disability ( promotion, victimisation, reasonable accommodation)

The complainant alleges that he has been discriminated against by his employer due to a disability. The disability is an anxiety related condition which first manifested itself in the 1980’s but wasn’t diagnosed for some years after that. The discrimination occurred against a backdrop of him making a compliant against his line manager. The discrimination takes a number of forms, including:

1. Failure by his employer to make reasonable accommodation for his request for a move to another work area despite knowledge of the ongoing difficulties with his line manager, his health background and a recommendation by Medmark that it would be to his benefit to move positions.

2. Abuse of medical referral process, including exaggeration of his disability to a serious mental illness in a medical referral to Medmark in December 2014.

3. Lack of urgency in investigating his complaint against my line manager.

4. Putting him at a disadvantage for potential promotion by creating a job description which blatantly excluded his area of expertise, despite this being a key function of the unit concerned.

5. Treating him less favourably than a colleague in terms of application of disciplinary procedure. Summoning him to a disciplinary meeting on 22nd October 2015 but his excluding his colleagues who were directly involved in the matter.

6. Treating him less favourably by not conducting ‘return to work’ meetings after sickness absence until requested by him and abdicating line manager responsibility for this on the grounds of the “sensitive nature” of his condition.

Victimisation.

The complainant alleges he was victimised by his employer following him making known, his intention to make a complaint to the Equality Authority and following the making of a formal complaint against his line manager. The victimisation included:

1. The respondent’s attempts to subject him to a disciplinary process based on a flawed investigation of his complaint, resulting in a flawed Investigation Report.

2. The victimisation persisted despite representations from his solicitor that he would seek an injunction to prevent the process going ahead.

The Complainant alleges that there were serious breaches of company policy which said breaches denied him his rights of natural justice on the following grounds:

1. Lack of understanding of organisational bullying and harassment policy and procedure by            his line manager.

2. Lack of understanding and misinterpretation of organisational bullying and harassment policy and procedure by the external investigator appointed.

3. Failure by his employer to recognise and address the mis-application of organisational bullying and harassment policy and procedure policy.

4. Failure by his employer to act reasonably when making decisions and to provide reasons for those decisions.

5. Failure by his employer to apply policy and procedure in a fair and objective manner.

6. Failure by his employer to provide a duty of care to me and comply with health and safety requirements.

7. Failure by his employer to provide a right to natural justice.

The Respondent’s treatment of him has had a negative impact on him in relation to his health, well-being, personal and professional self-confidence and perceived standing at work. In addition, the entire situation has caused great financial pressure due to continuing medical costs, losing pay due to being on sick leave from stress, missing out on an opportunity to apply for promotion and legal costs totalling €7,035. In addition, he alleges that the organisation has vicarious liability for the discrimination against me but failed to take steps to protect me and prevent the discrimination and harassment I have been subjected to.

Respondent’s Submissions

After the complainant returned from a period of sick leave, he raised a grievance in relation to utterances a superior had made about his mental health condition. The complainant felt that utterance was a gross exaggeration of the truth and was a breach of his right to privacy. The HR manager requested that he might deal with the matter informally and gave him a copy of the policy and procedures relevant to his complaint. The complainant when off to read the policy and to consider how he might like to proceed with the matter. When he returned he had with him a formal written complaint. He stressed that he wished to proceed with a formal complainant. The HR manager then sought to clarify whether he was medically fit to embark on this process. She had a duty of care to the staff and felt it was prudent to ensure his medical fitness due to the fact that he had been on extended stress related sick leave immediately prior to making the complaint. He was referred to the company doctor. The company doctor deemed him fit to continue with the process.

An independent third party investigator was engaged to investigate the complaint. She had her own requirements in relation to establishing whether the complainant was fit to engage in the process. Following her own enquires the process began. The respondent had no hand, act or part in her investigation. When it was completed a report was sent to HR. The complainant was most unhappy with the process and how it had been conducted. He felt that there had been a lack of understanding of the policies and procedures. He fundamentally disagreed with the findings. The respondent’s intention was to commence a disciplinary process against the complainant until his solicitors corresponded with the respondent. On foot of the representations made by the complainant the respondent engaged another investigator to review the report. That investigator’s findings were more favourable to the complainant and it was then decided not to proceed to a disciplinary process.

Reasonable accommodation

The Complainant’s submissions.

The complainant was off on stress related sick leave from the 24^th September 2014 – 18 November, 2014. When he returned to work there was no ‘return to work’ meeting in breach of company policy. The HR manager did have a discussion with him in relation to his return and his medical certificate but it was a brief discussion. The complainant made two requests to be moved to another section following the discovery that his line manager had allegedly made comments grossly exaggerating his mental health condition. His request on the 8^th January stated:

“ I wish to be relocated to another position and location within the authority as I am no longer able to work with …..” This request was ignored despite the suggestion being made in a previous medical report in January, 2015 that “ it would be to your benefit if it were possible to move you to another section within the Authority”

The Respondent’s submissions

The respondent followed all of policies and procedures in relation to the applicant request for reasonable accommodation. The complainant did not meet the criteria to facilitate such a request.

Promotion

Complainant’s submissions.

The complainant alleges he was discriminated against in relation to promotion. He alleges that when his line manager was promoted the respondent advertised his line manager’s job but intentional excluded his duties from the skill set required.

Respondent’s submissions.

The respondent stated that jobs are advertised with no specific individual in mind. They specifically kept the skill set general so as to attract a wider group of applicants. The complainant didn’t apply for this role. He did apply for a role a few weeks later in August and was successful. He continues in that role to date.

Bullying and Harassment.  

The complainant alleges that he was bullied and harassed by his line manager in the following ways:

1. 1. He failed to assist him when a complaint was made that he had left the building without permission.

   2. He made comments about his mental health condition.

   3. The comments about is mental health condition were a gross exaggeration.

   4. Failed to allow him carry out his PM &D.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Discrimination on the grounds of Disability.

Section 2 (1) defines “ Disability” as

1. The total of partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body.

2. The presence in the body of an organism causing, or likely to cause, chronic disease or illness,

3. The malfunction, malformation or disfigurement of a part of a person’s body.

4. A condition or malfunction which results in a person learning differently from a person without the condition or malfunction.

A condition, illness or disease which affects a person’s thought processes, perceptions or reality, emotions or judgement or which results in disturbed behaviour,

And shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

Before one can embark on a critical analysis of the evidence under each of the four categories of discrimination which make up the complainant’s complainant it must first be established that the complainant is suffering from a ‘ disability’.

The complainant was diagnosed in 1990’s as having an anxiety related condition. It was controlled with medication. He commenced his employment with the respondent in 1999 and worked form them with the medical condition for approximately 15 years before it became an issue. Following a break down in his working relationship with his line manager his condition deteriorated. The complainant was absent from work on two occasions as a result of this deterioration. The first occasion was from 24^th September, 2014 – 17^th November, 2014 and from the 2^nd July 2015- 17^th August, 2015. Before and after the periods of sick leave the complainant was functioning normally in the work place. He was fully capability of carrying out all of his contractual duties. The complainant has himself stated on the 8^th January, 2015 that the reason he requested that he be moved was not because of a disability but because he couldn’t work with his line manager anymore. Two medical reports were submitted into evidence dated the 5^th January2015 and the 10^th September, 2015 on behalf of the respondent. The purpose of the assessment in December, 2014 was to establish the complainant’s fitness for work and his capacity to make a decision on raising a formal complaint about bullying and harassment against his line manager. The conclusion reached by the assessing doctor was “ It is my opinion that he is capable of making this decision at the present time. I believe he has the capacity to proceed with this complaint. I believe that at present he is well enough and is fit for work.”

In September, 2015 the complainant was assessed to ensure “ he is fit to be back to work and fit to engage in an ongoing process. “ The conclusion was “ it is my opinion that he is now well and in good health. He is fit to be back at work without restriction …..”

The complainant submitted a report dated the 18^th October, 2016. This report is dated after the complainant moved positions. Nowhere in the report does it suggest that the complainant is incapable of carrying out some or all of his functions or that he requires the respondent to make reasonable accommodation for him to continue in his employment.

No medical evidence was adduced to suggest that the complainant’s “general anxiety” was such as to affect his though processes, perception of reality, emotions or judgement or which resulted in disturbed behaviours. I am satisfied based on the medical reports submitted into evidence that the complainant was not suffering from a disability within the meaning of the Act.

The complainant’s complaints that the respondent discriminated against him on the grounds of ‘disability’ must accordingly fail.

Victimisation.

Section 74 (2) For the purpose of this part, victimisation occurs where the dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to- (f) An employee having given notice of an intention to take any of the actions mentioned in (a) – (f) 

The Key elements of victimisation provided for in Section 74 are:

• that the complainant must have given notice of his intention to bring a claim, in this instance, under the equality legislation.

• That the employee be subjected to adverse treatment by the employer and that adverse treatment must be as a result of the protected act.

The burden of proof lies with the complainant to proof that he was subject to adverse treatment by his employer as a result of a protected act. The complainant was unhappy with the way in which the first investigation report was complied and with its results. Following disclosure of his unhappiness with the situation and upon receipt of correspondence from his solicitors the respondent made the decision to have a review of the investigation and its finding. The respondent engaged the services of external independent bodies to carry out the original investigation and the review of the investigation. I find that the respondent acted responsibly in the circumstances and did everything in their power to ensure that the complainant’s issues were addressed. Unintentional breaches of internal policies by external third party investigators could never in a law amount to adverse treatment within the meaning of the act. In any event,  I can find no evidence of adverse treatment. The complainant may have been unhappy with the findings of the review but that of itself does not amount to victimisation.

I find that the complainants complaint of Victimisation pursuant to the Industrial relations Act , 1946 fails.

Bullying and Harassment.

Section 14 A (1) For the purpose of this Act, where-

(a) An employee is harassed… either at a place where the employee is employed or otherwise in the course of his or her employment by a person who is

1. 1. employed at that place by the same employer or

(b)without prejudice to the generality of paragraph (a)

1. such harassment has occurred, and

2. either –

3. the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

4. it could reasonable be anticipated that he or she would be so treated,

The harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

The complainant lodged a formal complaint in relation to comments he alleges were made by his line manager about his mental health condition. He did not hear the comments himself. He was told by a colleague what had been said. He lodged a formal complaint. That was investigated by a third party external independent investigator. The findings of that investigation were such that the respondent decided to invoke the respondent’s disciplinary procedure against the complainant. The complainant took issue with the fact that the individuals who had told him what was said by his line manager were not subjected to the same treatment. Had the respondent proceeded to invoke the disciplinary process they may have found themselves in muddy waters in relation to this issue. However, they did take on board the complainants issues and engaged another individual to review the review. Following that it was decided that no further action would be taken. The result being that nobody, including the complainant was disciplined. The first investigation took placing arising out of his lodging of a formal complainant about his line manager.

I find that the complainant’s complaint of Bullying and Harassment fails.

Dated:   25 November 2016