Adjudication Officer/Equality Officer’s
Decision No: DEC-E/2016/144
Parties
Maher
(Represented by Coughlan Kelly Solicitors)
-v-
HSE South
File No: EE/2011/577
Date of issue:1 November, 2016
Employment Equality Acts, 1998-2011 – Sections 6, 8,14, 16 and 74 –discriminatory treatment – harassment – disability – reasonable accommodation – victimization
1. DISPUTE
This dispute involves a claim by Ms Rosey Maher (“the complainant”) that she was (i) discriminated against by HSE South (“the respondent”) on grounds of gender and disability, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of her conditions of employment; (ii) harassed by the respondent on grounds of gender and disability in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts; (iii) victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2011 and (iv) that the respondent failed to afford her reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2011.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a General Porter in the Waterford Regional Hospital in May, 2006. Prior to that she had worked for the respondent in the role of Catering Assistant and obtained her position as a General Porter following a competitive selection process. The complainant contends that from the outset of her employment as a General Porter she was treated differently to her male colleagues in terms of the nature and location of the shifts she was assigned within the hospital. She further contends that this treatment of her continued and submits that this amounts to less favourable treatment and/or harassment of her on grounds of gender contrary to the Acts. The complainant adds that she underwent a hernia operation in February, 2011 and that following her return to work from this procedure she was assigned duties which were unsuitable for her given her medical condition. Moreover she states that she suffered an injury to her back in March, 2011which necessitated her absence from work. The complainant submits that the shifts and tasks she was assigned at this time amounts to less favourable treatment and/or harassment of her on grounds of disability contrary to the Acts. She further submits that the respondent had no regard to her medical condition when assigning these duties and in doing so failed to provide her with reasonable accommodation under section 16 of the Acts. Finally, the complainant states that following submission of her complaint under the respondent’s Grievance Policy in April, 2011 she was penalised by (a) having her sick pay withdrawn and (b) being placed on night duty for a significant continuous period and (c) the contents of the documentation furnished by her Line Manager to Occupational Health and submits that this amounts to victimisation of her contrary to section 74(2) of the Acts. The respondent denies the complainant’s assertions in their entirety and notwithstanding this rejects the complainant’s contention that she was suffering from a disability in terms of section 2 of the Acts at the relevant times.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2011 to the Equality Tribunal on 5 August, 2011. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Pursuant to section 40(3)(b) of the Workplace Relations Act, 2015 I became an Adjudication Officer of the Workplace Relations Commission on 1 October, 2015, although this did not alter the delegation of the complaint to me in any way. My investigation of the complaint commenced on 15 January, 2014 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 5 June, 2014, 30 September, 2014, 26 November, 2014 and 27 November, 2014. A number of issues required further correspondence between the parties and the Equality Officer for several months subsequent to the Hearing.
2.3 At the Hearing it was noted that the documentation filed on behalf of the complainant detailed alleged acts which dated back to late 2008. I brought the Labour Court’s Determination in Hurley v Cork VEC[1] to both parties and invited the parties to submit arguments as regards what application it might have to the complaint. Having considered the arguments advanced I decided that my investigation would focus, in the first instance, on the alleged acts of unlawful behaviour which occurred between 6 February, 2011 and 5 August, 2011 - the six month period preceding the date of referral of the complaint, as prescribed at section 77(5)(a) of the Acts.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant commenced employment with the respondent as a Locum General Porter in the Waterford Regional Hospital in May, 2006. Prior to that she had worked for the respondent in the role of Catering Assistant and obtained her position as a General Porter following a competitive selection process. The complainant adds that relief porter staff at the hospital are chosen from a number of “Lists” such as the “Theatre List” and the “General List”. She further states that she was normally on the “General List” where seniority comes into play in terms of the allocation of assignments. The complainant adds that a number of her male colleagues are less cooperative and accommodating than her and although senior she is assigned shifts and duties by her Line Manager (Mr. X) which are considered to be the worst – in terms of hours, locations and duties - because Mr. X does not want to antagonise her male colleagues. She submits that this amounts to less favourable treatment and/or harassment of her on grounds of gender contrary to the Acts.
3.2 The complainant states that it is customary practice where a Porter on a Panel is assigned a shift ahead of a colleague who is senior, that the senior person is entitled to payment for that shift even though s/he does not actually work the shift. In this regard evidence was given by Mr. S who stated that he was a Full-time Porter on the Theatre Panel and confirmed that if he was passed over for a shift he would get paid for same even if he did not work. He added that he had benefitted from this arrangement on three occasions and stated that he had been told by colleagues on the General Panel that they had also benefitted from this arrangement – these were also Full-time Porters. He also confirmed that some of the senior Porters were forceful characters and pulled rank by refusing to work particular shift and Management did not confront the matter because they wanted an easy life. In response to questions from the respondent he replied it was only his opinion that this was the case and that female Porters would suffer detriment because they were not as forceful as their male colleagues. He added that such a scenario did not arise on the Theatre Panel as there were no female Porters on that Panel. He stated that seniority only applied at weekends. The complainant identified a colleague (Mr. Y) who is a Locum Porter and was assigned shifts ahead of her between January-April, 2011. In the course of the Hearing she accepted that she was subsequently paid for these shifts. In response to a question from the respondent she also accepted that Mr. Y was on the Stores- In Panel, that she was not on this Panel and that some of the occasions involved concerned assignments on that Panel.
3.3 The complainant states that she underwent a hernia operation on 25 February, 2011 and this necessitated her absence from work from 28 February, 2011 until 7 March, 2011. In the course of the Hearing the complainant accepted that she was certified to return to duty after this absence without restriction. She adds that on her return she was assigned duties in several areas of the hospital in the normal course and asserts that Mr. X (Household Services Manager) gave no consideration to her condition in allocating those assignments. The complainant states that she spoke with him about this advising him and he responded that as far as he was concerned she was fit for work. She adds that she also spoke with Ms. A (Assistant Manager Household Services) during this period and informed her that she (the complainant) had read a leaflet given to her following her operation and having done so she was of the view that she could not lift heavy objects, run up/down stairs or bend/stoop as a result of the procedure and that Ms. A made no response to this. It is submitted that the behaviour of the respondent in the manner in which it rostered her during this period amounts to a failure to provide her with reasonable accommodation in terms of section 16 of the Acts.
3.4 The complainant states that she was working on 14 March, 2011 when she experienced back pain and she subsequently attended her GP. She adds that as the unit was short staffed she did not leave immediately but that shortly thereafter she left and went to see her GP. She further states that her GP certified her as unfit for work due to acute backache from then until 30 March, 2011. The complainant states that she reported for night duty on 30 March, 2011 and at the end of her shift she was called to a meeting by Mr. X in his office. She states that in the course of this meeting Mr. X informed her that following a discussion with Ms. B (the hospital’s Deputy General Manager) it had been decided to permanently assign her to duties in the Medical Records Section. The complainant states she believed that the duties involved in that section – carrying charts, constantly bending, climbing and lifting - might exacerbate her back pain and create an impediment to her recovery from her hernia operation. In the course of the Hearing she confirmed that this was a personal belief but rejected the respondent’s assertion that it was a “less onerous” posting than others in the hospital. She adds that she informed Mr. X that if the transfer proceeded she would have to go on sick leave as the physical demands of the role would be excessive in those circumstances. The complainant states Mr. X replied that the transfer would proceed whenever she resumed duty, that she was the most suitable candidate and that she was going to Australia. She adds that she immediately attended her GP who furnished her with a medical certificate stating that the role was unsuitable for her as a result of her back problem and her recovery from her hernia operation. She adds that this letter also certified the complainant unfit for work until 11 April, 2011 due to “acute work related stress”. The complainant stated that she brought this letter to the hospital and handed it to either Ms. B or Mr. X –she could not recall which. In the course of the Hearing the complainant accepted that the job specification furnished by the respondent accurately reflects the tasks and duties which are appropriate to the role of Porter. However, she stated that Porters were not generally assigned to Medical Records. It is submitted on behalf of the complainant that the treatment of her amounts to discrimination and/or harassment of her on grounds of disability contrary to the Acts. It is also submitted that it amounts to victimisation of her. In addition, it is submitted that the respondent failed to afford her reasonable accommodation in accordance with section 16 of the Acts in insisting on transferring her to Medical Records Section without proper assessment.
3.5 The complainant states that she wrote to Ms. P in the hospital’s HR Department on 4 April, 2011wherein she set out her concerns about the proposed transfer to Medical Records given her recent medical history. She also raised issues about the manner in which she believed she had previously been treated by Mr. X as regards the assignment of shifts, duties and locations in the hospital in comparison with male colleagues. The complainant states that she received a letter from Mr. X on 6 April, 2011 requesting that she attend his office on 8 April, 2011. She further states that during this meeting Mr. X advised her that he was referring her to the respondent’s Occupational Health Physician. In the course of the Hearing the complainant stated that she was willing to agree to this referral and signed the relevant document without dispute as she was anxious to have the issue of her transfer to Medical Records Section resolved. However, she takes issue with Mr. X making reference in the referral documentation to the contents of the discussion on 31 March, 2011 and in particular her comment that if Mr. X insisted on her transferring she would go on sick leave and the reason for the referral was “Concern over conduct (behavioural difficulties)”. The complainant states that she met with the respondent’s Occupational Physician (Dr. Z) 0n 18 April, 2011. She states that she informed Dr. Z of her recent medical history and of her belief that she had been treated unfairly by Mr. X in terms of assignments and that when she sought to raise it with him he would not listen to her. The complainant confirmed that when she resumed duty after this absence (on 9 May. 2011) she was assigned duties similar to those she had previously been assigned and was not transferred to Medical Records Section. It is submitted on behalf of the complainant that the decision to transfer her to Medical Records amounts to victimisation of her in terms of section 74(2) of the Acts and/or less favorable treatment of her on grounds of disability contrary to section 6 of the Acts. In the course of the Hearing the complainant’s legal representative submitted that the “protected act” in this regard is the complainant’s letter of 4 April, 2011 and her refusal to transfer to Medical Records on 31 March, 2011 – an action that was supported by her GP.
3.6 The complainant states that in mid-April. 2011 the respondent withheld sick payment from her in respect of a period of her absence earlier that month. She adds that she had received sick payment previously and also received payment for other periods during that absence. The complainant states that when she raised this matter with Ms. A she (Ms. A) advised that Mr. X had instructed that this payment be withheld. In the course of the Hearing the complainant accepted that payment of sick pay is at the discretion of the respondent but argued that staff absent on stress related sick leave are normally paid during those absences. It was further argued that before such a decision was taken it would be appropriate for the complainant to be referred to Occupational Health to enable the respondent make an objective decision on the matter. The actions of the respondent were arbitrary and subjective and were in direct response to the complainant’s letter of 4 April, 2011 and her refusal to transfer to Medical Records on 31 March, 2011. The complainant confirmed that she subsequently (two weeks later) received payment of the outstanding amount. It is submitted on behalf of the complainant that in all of the circumstances this constitutes victimisation of her contrary to the Acts. It is also submitted that a male colleague would not be treated the same in similar circumstances and that this amounts to discrimination of the complainant on grounds of gender contrary to the Acts. In the course of the Hearing the complainant stated that she was aware of colleagues (both male and female) who had their salary reduced when absent on sick leave.
3.7 The complainant states that she was rostered for an “on-call” shift in Theatre on 3 July, 2011. This shift attracts double-time payment. She states that towards the end of the week preceding 3 July, 2011 Mr. X informed her that her assignment to that shift was cancelled and she was assigned to the Emergency Department for Saturday 2 July, 2011 instead. She further states that she sought to be released from the General Panel so she could be available for an “On-call” shift in Theatre on Sunday 31 August, 2011. She adds that believed she had an entitlement to this as it had been confirmed to her by Ms. B that she was the Third Locum for Theatre. She adds Mr. X informed her that as far as he was aware the arrangement with Theatre was only casual and that she should sort the matter out with Ms. B. Eventually, Mr. X agreed that she could have Saturday 2 July, 2011 off so she could be rostered for the Theatre shift the next day. It is submitted on behalf of the complainant that these two incidents amount to victimisation of her contrary to the Acts.
3.8 The complainant states that in September, 2011 Mr. X rostered her for duty on thirteen consecutive days. She adds that this was excessive and she advised him (verbally) that this was presenting difficulties for her as it involved day shifts, then night shifts then day shifts again. The complainant further states that Mr. X was indifferent to her situation and responded that “she had sent him a solicitor’s letter”. It is submitted on her behalf that this amounts to victimisation of her contrary to the Acts. In the course of the Hearing the complainant’s representative submitted that the “protected act” in this instance were a series of letters from that firm to the respondent from May, 2011 onwards. She further contends that Mr. X would roster her on a higher number of night shifts compared to her male colleagues and submits this amounts to less favourable treatment of her on grounds of gender contrary to the Acts.
3.9 It is submitted on behalf of the complainant that she has established a prima facie case in respect of all elements of her complaint and that the respondent has failed to rebut that inference of unlawful treatment contrary to the Acts. It is further submitted that she suffered from a disability in terms of section 2 of the Acts. It is contended that no assessment of her suitability for the role in Medical Records was conducted at the time, that the respondent’s decision in this regard was premised on its opinion that she was a good worker, that it would guarantee her hours, that she was flexible and that her selection would address a pressing issue for the respondent were the determining factors. This is contrary to the requirements set out in the relevant legal authorities. Moreover, the disability involved was not long term and reasonable accommodation could have been provided without giving rise to a disproportionate burden to the respondent. It is argued that the complainant was treated less favourably by the respondent as regards the assignment of shifts and related matters in comparison with male colleagues. Finally, it is contended that the complainant was penalised in circumstances amounting to victimisation contrary to the Acts once she raised her concerns about her transfer to Medical Records Section in late March, 2011.
4 SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s allegations in their entirety. It states that the complainant is employed as a Locum Porter and as portering services are required by the hospital on a 24/7 basis shifts can be day, evening or night and staff are required to be flexible. It adds that as a Locum Porter the complainant was called for work in accordance with her placement on the relevant Panel as and when work was available. The respondent further states there are three Portering Panels in operation in the hospital – General, Household and Theatre. It adds that generally speaking staff are only on one Panel but they can be moved between Panels for operational reasons. It adds that the complainant was assigned shifts on all Panels during her employment as and when shifts arose. The respondent (Mr. X) states that he approves the shifts on the General Panel in consultation with Ms. A- weekly in advance – and staff are aware of their shifts for the following week on a Thursday. He adds that in performing this task he has regard to the needs of the hospital, the staff available to him and the skill mix required to provide the necessary level of cover in each area. He emphatically rejects the assertion that staff are permitted to refuse certain shifts if they dislike them but states that staff are permitted to swop shifts between each other, subject to the approval/agreement of Management. The respondent (Mr. X) states that shifts are assigned to Permanent Portering staff in the first instance and gaps on the roster are then filled using Locum staff having regard to their placement on the relevant Panel. He emphatically rejects that the complainant was treated less favourably in the assignment of these shifts on grounds of gender and/or disability contrary to the Acts. In the course of the Hearing the respondent accepted that a custom and practice existed on the Theatre Panel (which is not administered by Mr. X but by the Theatre Manager) where staff who were overlooked for a shift in favour of a less senior colleague (where that member of staff had not already been assigned thirty-nine hours that week) were paid for that shift. It added however that this custom and practice did not operate on the Household Panel.
4.2 The respondent disputes that the complainant suffered from a disability in February/March, 2011. It states that the complainant was on certified sick leave from 26 February, 2011 until 6 March, 2011. The medical certificate covering this period merely stated “medical condition”. The respondent adds that the complainant returned to full duties after this absence and that she did not request lighter duties or provide any medical evidence that she was restricted in terms of the duties she could perform as a consequence of her hernia operation. In the course of the Hearing Ms. A accepted that the complainant had spoken with her on her return to work and mentioned she had recently undergone a hernia operation but rejected any assertion that the complainant had indicated she (the complainant) could not perform any particular duties. In the course of the Hearing Mr. X also rejected the assertion that the complainant raised her situation with him at this time. The respondent argues that the complainant was not suffering from a disability at this time. Without prejudice to this argument, it further submits it was not on notice that the complainant was restricted in respect of the duties she could perform and consequently, it did not fail to afford her reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2011.
4.3 The respondent states that the complainant was absent on certified sick leave from 15 March, 2011 until 30 March, 2011. It adds that the medical certificates covering this absence state that she is “unfit for work, acute low backache”. It adds that the complainant resumed duty on 30 March, 2011 on a night duty and that she did not indicate she was unable to perform the full range of duties prior to, or on the day of her resumption. The respondent (Ms. B) states that there was a vacancy in Medical Records and that this vacancy had been identified as a priority to be filled. The respondent (Ms. B) states that the work in the area involved duties which were appropriate to the role of Porter and she asked Mr. X to identify a suitable employee for redeployment to Medical Records. The respondent (Mr. X) states that he recommended the complainant for the position and Ms. B agreed with this. The respondent (Mr. X) adds that the following factors were considered by him in making this recommendation – (i) the complainant was an excellent worker and would be an asset to Medical Records, (ii) she would be guaranteed thirty-five hours per week on 9-5 shifts and she would not be required to work weekends and (iii) he considered the work in Medical Records to be less physically demanding than some portering tasks associated with other areas of the hospital. In the course of the Hearing both Mr. X and Ms. B stated they had no reason to believe that the complainant was not medically capable of performing the duties in Medical Records at that time, although Mr. X accepted that Ms. A may have informed him of the reasons for the complainant’s absence between 16-23 March, 2011. Both emphatically rejected the assertion that the decision to assign her to Medical Records constitutes discrimination and/or victimisation of her contrary to the Acts.
4.4 The respondent (Mr. X) states that he met with the complainant in his Office on the morning of 31 March, 2011 after she had just completed a night shift. He adds that when he advised the complainant she had been selected to transfer to Medical Records for operational reasons she became angry and informed him that she believed the tasks involved would exacerbate her backache and impact on her recovery from her hernia operation. Mr. X rejects that he advised her she had been selected because she was going to Australia or that the transfer would occur when she resumed, although he accepts that he was forceful in his message. The respondent (Mr. X) states the complainant informed him that if she was transferred she would go on sick leave. The respondent states that the complainant subsequently went on sick leave with effect from 31 March, 2011. It adds that she furnished a medical certificate covering this absence citing “acute work induced stress” as the reason. The respondent further states that the complainant furnished a letter from her GP (dated 31 March, 2011) which stated that (i) the complainant had recently undergone a hernia operation; (ii) she had recently suffered backache problems which would be aggravated if she moved to Medical Records and (iii) her GP had advised her that the role in Medical Records was unsuitable for her. The respondent states that this was the first occasion it had received any medical confirmation of her hernia operation or that the role in Medical Records might be unsuitable for her from a medical perspective.
4.5 The respondent states that Mr. X subsequently met with the complainant and it was decided, with her consent, that she should be referred to the respondent’s Occupational Health Physician to assess whether or not there was any medical impediment to her assignment to Medical Records. In the course of the Hearing Mr. X confirmed that he had the authority to request such a referral. He also stated that he spoke with Ms. B about the complainant’s threat to go on sick leave if the transfer to Medical Records proceeded and she agreed that she should be referred to Occupational Health. This was confirmed by Ms. B independently at the Hearing. In the course of the Hearing Mr. X stated (in response to questions from the Adjudicator/Equality Officer) that (i) he had the complainant’s GP report of 31 March, 2011 but did not furnish this to the Dr. Z (Occupational Physician) nor make any reference to same in the Referral Form and could offer no explanation for same other than to say that the Referral Form would not normally contain medical details unless the employee consented; (ii) he could offer no explanation why he ticked the box labelled “concern over conduct – behavioural difficulties” and did not tick the box “disability assessment”; (iii) stated that he asked if she was medically fit for work because her most recent absence was due to “work related stress” and (iv) he could offer no explanation why he did not simply ask the question “Is the complainant fit to perform duties in Medical Records?”. The respondent states Dr. Z’s report recommended that the complainant be permitted to work in her existing role for a period of weeks and that as the position in Medical Records required to be filled as a matter of urgency, the position was filled by another employee and the complainant never took up the role. It adds that on her return to work in May, 2011 she was assigned duties similar to those she had been assigned immediately before this absence. It submits therefore that the complainant was not subjected to victimisation and/or less favourable treatment of her contrary to the Acts.
4.6 The respondent accepts that it received the complainant’s letter of 4 April, 2011 and adds that the matters raised in it were subsequently investigated in accordance with its Dignity at Work Policy. It adds that the Investigation Team interviewed all the relevant personnel and did not find the complaint well founded. It accepts that there was some delay with the process but this arose primarily because Mr. X was absent on a prolonged period of sick leave in late 2011. It adds that the complainant never appealed this decision.
4.7 The respondent accepts that a decision was made to withhold payment for a period when she was absent on sick leave. It adds that payment of sick pay is at the discretion of the employer – it is not an entitlement – and that the decision to withhold payment in this instance was made by Ms. B. In the course of the Hearing Ms. B confirmed that she had made the decision on 31 March, 2011 – the day Mr. X had informed her of the complainant’s intention to go on sick leave if her transfer to Medical Records proceeded and predated medical certification that he absence was due to “workplace related stress”. The respondent (Ms. B) adds that she would have made the same decision if any other employee behaved the way the complainant did – threatening to abuse the sick pay scheme. The respondent further states that the decision to withhold payment was rescinded on receipt of Dr. Z’s report and she received payment of the appropriate amount. It submits therefore that the actions of the respondent do not amount to victimisation and/or discrimination of the complainant contrary to the Acts.
4.8 The respondent rejects the complainant’s assertion that she was victimised in terms of her assignment of shifts in early July and end August, 2011. It states that whilst the complainant was third Locum Porter on the Theatre List her first assignment rested with the General Panel. It adds that as regards the July assignment she was released from her General Panel assignment so she could avail of the shift in Theatre the next day.
4.9 The respondent states that the roster details submitted by the complainant covering the period 10 September-26 September, 2011 are incorrect. It rejects the complainant’s assertion that she was rostered for thirteen consecutive days and submitted details of the relevant rosters in support of this. The respondent (Mr. X) rejects the assertion that the complainant spoke with him about her rostered shifts at this time. In the course of the Hearing Ms. A stated that she had spoken with the complainant on 14 September, 2011 and advised her that she (the complainant) was rostered for four night shifts the following week – 19, 20, 22 and 23 September. Ms. A stated that the complainant refused to work the Friday night as she had a family event the following day. She added that she (Ms. A) managed to get cover for the complainant’s shifts on 19 and 20 September and she did not work the Friday night shift either so she ended only working one night shift that week – 21 September. The respondent states that a male colleague on the roster worked three night shifts and a female colleague worked three such shifts. The respondent submits that the allocation of shifts was done in accordance with normal practices and do not amount to either discrimination and/or victimisation of the complainant contrary to the Acts.
4.10 The respondent rejects the complainant’s assertion that she was discriminated against on the impugned grounds and/or victimised contrary to the Acts. It adds that the decision to assign her to Medical Records was for operational reasons and that at that time she was not certified as unfit to carry out any of the duties attached to her role as a Porter in any area of the hospital. It further submits that when information of that nature was brought to its attention as regards her assignment to Medical Records it was decided, with her agreement, to refer her to Occupational Health to establish her ability to perform those duties. It states that it complied with the opinion contained in this assessment and that ultimately she never took up that role. It further states that the decision to withhold sick pay from her was taken because of her threat to abuse that scheme and that the respondent (Ms. B) made that decision for reasons unconnected with the grounds cited or in an effort to penalise the complainant in terms of section 74(2) of the Acts
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not (i) the complainant was discriminated against by the respondent on grounds of gender and/or disability, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of his conditions of employment; (ii) the complainant was harassed by the respondent on grounds of gender and/or disability in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts; (iii) the complainant was victimised by the respondent contrary to section 74(2) of the Employment Equality Acts, 1998-2011 and (iv) the respondent failed to afford the complainant reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2011. 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.
5.2 Section 85A of the Employment Equality Acts 1998 - 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of the Equality Tribunal (now WRC) and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer/Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainantdoes not discharge the initial probative burden required his case cannot succeed.
5.3 The complainant contends that she was discriminated against, harassed and victimised contrary to the Acts and details a number of alleged incidents in this regard. In several of these alleged incidents she seeks to use the same facts to ground claims under more than one of these headings. In A School v A Worker[2] the Labour Court held “ that as a matter of principle the complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts. The Court will, however, deal with these overlapping claims as if they were pleaded in the alternative.” and I propose to adopt the Court’s approach in the instant case.
5.4 The respondent disputes that the complainant suffered from a disability in terms of section 2 of the Acts at the relevant time. Moreover, it submits that if this is not the case she never put it on notice that she was suffering from same. The first period which I must examine is the period between 7 March and 14 March, 2011 – the period after the complainant resumed work following a procedure in respect of a hernia. I have examined the medical certificate covering this absence and it merely states “medical condition” as the reason for same. It is common case that the complaint did not furnish the respondent with any medical opinion at the time which suggested she was unable to perform the full range of duties attached to her role on her return and consequently I am satisfied that the respondent was entitled to assign her duties in accordance with her role as Porter. The complainant states that she spoke with Mr. X around this time advising that she felt the duties were too onerous for her given her condition. Mr. X rejects this. I found the complainant to be a credible witness who gave her evidence in a clear and forthright manner and on balance I prefer her version of events. It is common case that the complainant spoke with Ms. A around this time and that she (the complainant) made reference to her ability to perform the tasks she was assigned given her condition. In the normal course I would have expected the respondent, in light of this information, to refer the
complainant to Occupational Health for assessment. However, the complainant experienced backache a few days later which necessitated her absence from work and there was not sufficient time for the respondent to arrange this. In the circumstances I am satisfied that the respondent was prevented from investigating the matter in any meaningful manner. Moreover, all that was available to it was the personal view of the complainant that she was unable to perform the duties assigned to her. In the circumstances I find that any treatment of her could not have been influenced by the fact that she was or was not suffering from a disability in terms of the Acts and consequently she has failed to establish a prima facie case (i) of discrimination on grounds of disability and (ii) that the respondent failed to provide her with reasonable accommodation in terms of section 16 of the Acts and this element of her complaint fails.
5.5 It is common case that the complainant was certified as unfit for work due to “acute lower backache” from 15 March, 2011 until 23 March, 2011. It is again common case that the complainant was permitted to resume work by her GP without any restriction. The respondent argues that the complainant was not suffering from a disability in terms of section 2 of the Employment Equality Acts, 1998-2011. Whilst the definition of “disability” in the Acts is a medical one not every condition one might suffer from is encompassed by that definition. ”. In A Worker v A Government Department[3] the Labour Court draws a distinction between “emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life” on the one hand and “recognised psychiatric illnesses” on the other. In doing so the Court appears to view stress and anxiety as symptoms of what a condition – depression – which it clearly sees as a disability. Such a distinction is also contemplated by the ECJ (as it then was) in Chacon Navas v Eurest Colectividades SA[4]. The complainant’s medical certificate covering this absence indicates “acute lower backache” as the reasons for the absence.Applying the principles set out by the Court as set out above I am of the view that backache is an underlying symptom of a condition which might constitute a disability in terms of the Acts but is not a disability in its own right. Consequently, I find the complainant did not have disability at the relevant time and any alleged treatment of her could therefore not amount to discrimination of her on that ground contrary to the Acts. Without prejudice to this finding, it is common case that there were no limitations placed on the tasks she could perform when she returned to work and the respondent was entitled to rely on this.
5.6 It is common case that Mr. X spoke with the complainant on the morning of 31 March, 2011 and informed her that the decision had been made to transfer her to Medical Records. In the course of the Hearing Mr. X confirmed that (i) it was likely Ms. A had advised him of the reason for the complainant’s absence during that period and (ii) he had made the recommendation to Ms. B that the complainant was the most suitable candidate for the position in Medical Records. I also note that he states he took the following factors into consideration when recommending the complainant for the post in Medical Records - (i) the complainant was an excellent worker and would be an asset to Medical Records, (ii) she would be guaranteed thirty-five hours per week on 9-5 shifts and she would not be required to work weekends and (iii) he considered the work in Medical Records to be less physically demanding than some portering tasks associated with other areas of the hospital and I accept, on balance, that this was the case. In the course of the Hearing both Mr. X and Ms. B stated they had no reason to believe that the complainant was not medically capable of performing the duties in Medical Records at that time and I accept this to be the case also. I note that the role in Medical Records is expressly provided as one which is appropriate to the post of Porter in the hospital. Having carefully considered the totality of the evidence adduced by the parties on this issue I find that the complainant has failed to discharge the initial probative burden required of her and this element of her claim cannot therefore succeed – discriminatory treatment on the ground of disability.
5.7 It is common case that in the course of the meeting on 31 March, 2011 the complainant advised Mr. X that if the respondent insisted on transferring her to Medical Records she would go on sick leave as she was of the view that the tasks she would be required to perform in Medical Records were unsuitable for her given her recovery from the hernia operation and her recent back issues. It is also common case that the complainant did not take up the post in Medical Records at that time and was certified as unfit for work by her GP. I note that this certificate states the complainant had recently undergone a hernia operation and was in recovery for same; that she had recently been diagnosed with backache problems; that the role in Medical Records was unsuitable given this and she (the complainant) was advised against it and that she was unfit for work due to “work induced stress”. The respondent’s response to this was to refer the complainant, with her consent, to Occupational Health. I am satisfied that this was the action of a prudent employer so as to enable it make an informed decision and comply with the requirement set out in the relevant jurisprudence on the matter. However, the complainant takes issue with the manner in which Mr. X completed the form for Occupational Health. She submits that this amounts to discrimination of her on grounds of disability. To discharge this burden she must, as a basic minimum, show that she was treated differently to a person without a disability or with a different disability. She has failed to do so and this element of her complaint fails.
5.8 In the alternative the complainant submits that the actions of Mr. X in completing this form constitutes victimisation of her in terms of section 74(2) of the Acts. Section 74(2) of the Acts defines victimisation as follows:
“victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) …….
(c) ….
(d)
(e)
(f) an employee having opposed by lawful means an act that is unlawful under this Act….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
In Tom Barrett v Department of Defence[5] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a “protected act”, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
5.9 In the first instance, I must decide whether or not the complainant took action that could be regarded as a “protected act”. In the course of the Hearing the complainant’s legal representative submitted that the “protected act” in this regard is the complainant’s letter of 4 April, 2011 and her refusal to transfer to Medical Records on 31 March, 2011 – an action that was supported by her GP. I am satisfied, on balance, that the combined effect of these two events constitutes a “protected act” in terms of section 74(2) of the Acts. I shall now examine the second limb of the test – was the complainant subjected to adverse treatment by his/her employer. I have examined the contents of the Referral Form to Occupational Health. I also note Mr. X’s responses in the course of the Hearing that (i) he had the complainant’s GP report of 31 March, 2011 but did not furnish this to the Dr. Z (Occupational Physician) nor make any reference to same in the Referral Form and could offer no explanation for same other than to say that the Referral Form would not normally contain medical details unless the employee consented; (ii) he could offer no explanation why he ticked the box labelled “concern over conduct – behavioural difficulties” and did not tick the box “disability assessment”; (iii) stated that he asked if she was medically fit for work because her most recent absence was due to “work related stress” and (iv) he could offer no explanation why he did not simply ask the question “Is the complainant fit to perform duties in Medical Records?”. I am satisfied that this amounts to adverse treatment of the complainant. The actions and comments of Mr. X were, in my view, constructed in such a way as to reflect the complainant in a poor light and possibly elicit a report from Occupation Health that would achieve that particular outcome. Their proximity to the events of 31 March, 2011 and her letter of 4 April, 2011 (the “protected act”) strongly supports my conclusion that the adverse treatment is in reaction to the protected act having been taken by the complainant – which satisfies the third limb of the test. In light of the foregoing I find that the complainant was victimised in terms of section 74(2) of the Acts. It is common case that the complainant did not take up the role in Medical Records and that on her return to work in May, 2011 she was assigned the duties she had been assigned immediately before this absence and consequently she was not subjected to victimisation contrary to the Acts. I do not accept this proposition as the original actions of Mr. X are the impugned ones, although it may have some impact when assessing the appropriate remedy.
5.10 It is common case that the complainant had payment for a sick absence withheld by the respondent. The complainant contends that this amounts to discrimination on grounds of gender and/or victimisation of her contrary to the Acts. In terms of the former assertion she submits that that a male colleague would not be treated the same in similar circumstances – in essence seeking to use a hypothetical comparator. In the course of the Hearing the complainant stated that she was aware of colleagues (both male and female) who had their salary reduced when absent on sick leave. Consequently, as there are actual comparators there is no basis upon which a hypothetical comparator should be used. As the complainant agrees there are males and females who had sick pay withheld previously, there are reasons unconnected with their gender for the treatment and the complainant’s allegation of discrimination on grounds of gender fails. As regards the complainant’s assertion that the treatment amounts to victimisation, I note that the payment is at the discretion of the employer. I further note Ms. B’s evidence that (i) the decision was made by Ms. B on 31 March, 2011 – the day Mr. X had informed her of the complainant’s intention to go on sick leave if her transfer to Medical Records proceeded (ii) this decision predates the medical certification of 31 March, 2011 and (iii) she would have made the same decision if any other employee behaved the way the complainant did – threatening to abuse the sick pay scheme. I have carefully considered the response of Ms. B and I am satisfied, on balance, that it offers a credible alternative, lawful explanation for her actions. I have carefully considered the totality of the evidence adduced by the parties on this matter and I find that the complainant has failed to establish facts from which an allegation of victimisation could be inferred and this element of her complaint fails.
5.11 The complainant states that she was rostered for an “on-call” shift in Theatre on 3 July, 2011 – a shift which attracts double-time payment. She states that towards the end of the week preceding the shift Mr. X informed her that her assignment to that shift was cancelled and she was assigned to the Emergency Department for Saturday 2 July, 2011 instead. She makes a similar assertion in respect of a shift on 31 August, 2011. The complainant states that as Third Locum on the Theatre List she had an entitlement to this premium rate shift. The respondent states that whilst the complainant was Third Locum Porter on the Theatre List her first assignment rested with the General Panel. It adds that she was subsequently released from her General Panel assignment so she could avail of the shift in Theatre on 3 July. It is clear to me that by this time the relationship between the complainant and Mr. X was tense and strained. However, I cannot accept the events of July and August are as a direct response to letters from the complainant’s solicitor in May, 2016 – which were addressed to the hospital’s HR General Manager or to her actions the previous March/April . My conclusions in terms of the events in September, 2011 (see below) support this outcome. Consequently, I find that the complainant has failed to discharge the initial probative burden required of her and this element of her complaint cannot succeed.
5.12 The complainant contends Mr. X rostered her for duty on thirteen consecutive days in September, 2011. She adds that this was excessive and she advised him (verbally) that this was presenting difficulties for her as it involved day shifts, then night shifts then day shifts again he was indifferent to her situation and responded that “she had sent him a solicitor’s letter”. It is submitted on her behalf that this amounts to victimisation of her contrary to the Acts. In the course of the Hearing the complainant’s representative submitted that the “protected act” in this instance were a series of letters from that firm to the respondent from May, 2011 onwards. She further contends that Mr. X would roster her on a higher number of night shifts compared to her male colleagues and submits this amounts to less favourable treatment of her on grounds of gender contrary to the Acts. The respondent rejects this assertion and without prejudice to this argument states that the roster details submitted by the complainant covering the period 10 September-26 September, 2011 are incorrect. It submitted details of the complainant’s shifts from its own records in support of this assertion. I have examined these rosters for the period 10 September-16 September, 2011. I am satisfied that during this period the complainant worked 27.5 hours – 13.5 of which were during day shifts and 14 during the night shifts. In addition she was not working on either 10 or 11 September, 2011. She was rostered for the next two days and had the following day off. She worked on 15 and 16 September, 2011. I do not consider this to be onerous and it cannot therefore amount to adverse treatment of her in terms of section 74(2) of the Act. The complainant was rostered for night duty on 19, 20, 22 and 23 September, 2011. The fact that she did not actually work all these night shifts in not relevant to the allegation of victimisation, it is the fact that she was rostered for them is at issue. I have examined the rosters for the week in question which were furnished by the respondent and I am satisfied that one of her colleagues was rostered for three consecutive nights duties and another was roster for four consecutive night shifts. I cannot therefore accept that a pattern of two consecutive night shifts followed by a day off and then the assignment of two further consecutive night shifts can be classified as adverse treatment of her contrary to the Acts. Consequently, I find that the complainant has failed to establish a prima facie case of victimisation contrary to the Acts and this element of her complaint fails. The complainant submits, in the alternative, that she was assigned a higher number of night shifts compared to her male colleagues and that this amounts to less favourable treatment of her on grounds of gender contrary to the Acts. The complainant has not established any facts from which an inference of discrimination could be raised and this element of her complaint cannot succeed.
5.13 I will now look at the remaining gender elements of the complainant’s claim. She states that she was normally on the “General List” where seniority comes into play in terms of the allocation of assignments and states that although she is senior she is assigned shifts and duties by Mr. X which are considered to be the worst – in terms of hours, locations and duties. She asserts that several of her male colleagues are less cooperative and accommodating than her and Mr. X does not want to antagonise them by assigning them certain shifts. Her view on this matter was supported by Mr. S. The respondent (Mr. X) rejects this assertion stating that in rostering staff he has regard to the needs of the hospital, the staff available to him and the skill mix required to provide the necessary level of cover in each area. He adds that shifts are assigned to Permanent Portering staff in the first instance and gaps on the roster are then filled using Locum staff having regard to their placement on the relevant Panel. In the course of the Hearing Mr. S stated that it was only his opinion that female Porters would suffer detriment because they were not as forceful as their male colleagues. I note that the complainant is a Locum Porter and as such would only be entitled to shifts where gaps in the roster remain after Permanent staff have been accommodated. The complainant has advanced only assertions in support of this element of her complaint. It is settled law that mere assertions are insufficient to discharge the initial probative burden required[6]. I therefore find that the complainant has failed to establish a prima facie case that he was treated less favourably on grounds of gender contrary to the Acts and this element of her complaint fails.
5.14 The complainant states that it is customary practice where a Porter on a Panel is assigned a shift ahead of a colleague who is senior, that the senior person is entitled to payment for that shift even though s/he does not actually work the shift. Her view on this issue was supported by Mr. S. who is Full-time Permanent Porter on the Theatre Panel. I note his evidence that he had been told by colleagues on the General Panel that they had also benefitted from this arrangement and that these were also Permanent Full-time Porters. The complainant is not in a comparable position to Full-Time Permanent Porters. Section 6(2)(a) of the Employment Equality Acts, 1998-2011 states that discrimination shall be taken to have occurred where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’)”.Consequently, she has not established facts from which less favourable treatment of her on grounds of gender could be inferred. The complainant identified a colleague (Mr. Y) who is a Locum Porter and was assigned shifts ahead of her between January-April, 2011. In the course of the Hearing she accepted that she was subsequently paid for these shifts. In response to a question from the respondent she also accepted that Mr. Y was on the Stores- In Panel, that she was not on this Panel and that some of the occasions involved concerned assignments on that Panel. Again, I am not satisfied that she has discharged the initial probative burden required of her and this element of her complaint fails.
5.15 The complainant submits that certain elements of her complaint constitutes harassment of her on grounds of gender and/or disability contrary to the Acts. Section 14(7)(a) of the Acts as follows:
“In this section—
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”
I have carefully considered the arguments advanced by the parties on this issue and I am not satisfied that any of the behaviour identified by the complainant as amounting to harassment of her is encompassed by the definition of harassment in the statute and consequently this element of her complaint cannot succeed.
5.16 The complainant submits that the respondent failed to provide her with reasonable accommodation in March/April, 2011 when she was suffering from a disability. Section 16 of the Employment Equality Acts, 1998-2011 places a positive obligation on an employer to provide reasonable accommodation to an employee with a disability in certain circumstances. It is settled caselaw that in order for this obligation to arise the employer must be on notice the employee is suffering from a disability. The complainant contends, in essence, that this obligation commenced on 7 March, 2011. The medical certificates covering this absence (7-14 March, 2011) merely states “medical condition”. The complainant accepts that she did not furnish the respondent with any medical opinion at the time which suggested she was unable to perform the full range of duties attached to her role on her return to work or that she needed an accommodation to do so. Whilst I am satisfied she subsequently suggested to Ms. A that she (the complainant) had concerns about her capacity to perform certain duties events were overtaken in that she was certified as unfit for duty due to “acute lower backache” from 15 March, 2011 until 23 March, 2011. I have already found that this is not a disability within the meaning of “disability” at section 2 of the Acts. Notwithstanding this conclusion, I note that yet again the complainant was not medically certified as unable to perform the duties attached to her post until the proposal to transfer her to Medical Records emerged. The complainant was subsequently certified as unfit for work due to “work induced stress” and the respondent was also advised that the complainant had recently undergone a hernia operation and was in recovery for same; that she had recently been diagnosed with backache problems; that the role in Medical Records was unsuitable for her given this and she (the complainant) was advised against the transfer.
5.17 It was at this juncture that the respondent referred the complainant to an Occupational Health Physician. This referral was made with the express consent of the complainant. Such an approach is entirely consistent with the jurisprudence in this area. The respondent subsequently complied with the recommendation of that Physician and ultimately the complainant was never actually transferred to the Medical Records Section. In light of the foregoing I cannot conclude that the respondent failed to fulfil its obligations under section 16 of the Acts and this element of the complaint fails.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with (i) section 79(6) of the Employment Equality Acts, 1998-2015 and (ii) section 41(5) of the Workplace Relations Act, 2015
I issue the following decision. I find that the complainant–
(i) has failed to establish a prima facie case of discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of her conditions of employment.
(ii) has failed to establish a prima facie case of discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of her conditions of employment.
(iii) has failed to establish a prima facie case of harassment on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts.
(iv) has failed to establish a prima facie case of discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts.
(v) has failed to establish a prima facie case that the respondent has failed to provide her with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998 – 2011.
(vi) was victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998 – 2011.
6.2 Section 82 of the Employment Equality Acts, 1998-2011 provides that where a complaint of discrimination or victimisation is upheld, an award of compensation may be made for “the effects” of that discrimination or victimisation. I do not consider the actions of Mr. X, in the manner in which he completed the Referral Form to Occupational Health, to fall into the higher range of victimisation. Moreover, I note that ultimately the respondent achieved what she set out to do and was not assigned to Medical Records. In the circumstances I find compensation in the sum of €5,000 to be just and equitable and in accordance with my powers under the Acts I order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the victimisation of her. This award is to reflect the infringement of her entitlements under the Acts and does not include any element of remuneration. It is therefore not subject to the PAYE/PRSI code.
_______________________________________
Vivian Jackson
Adjudication Officer/Equality Officer
1 November, 2016
Footnotes
[1] EDA 1124
[2] EDA 122
[3] EDA 094
[4] Case C13/05 Paragraph 44
[5] EDA1017
[6] EDA 0917 Melbury Developments v Arturs Valpetters