DEC-E2017-063

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2017- 063

PARTIES

An Employee

Vs

A Third Level Institution

File reference: EE/2013/651

Date of issue: 21st of August 2017

1. Dispute

This dispute involves a claim by a complainant that he was discriminated against by the respondent on the grounds of disability and sexual orientation in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015. There are also complaints of harassment, sexual harassment and of victimisation as well as a claim of failure to provide reasonable accommodation.

2. Background

2.1 The complainant referred a complaint against the above respondent under the Equal Status Acts 2000 to 2015 to the Equality Tribunal on the 5th of December, 2013.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 25th of May 2017 to me, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties.

2.3 The complainant wrote to the Commission advising that he did not wish to attend a hearing in respect of his complaint but asked that the Commission complete the investigation and issue a decision without a hearing.

2.4 Section 24 of the Civil Law (Miscellaneous Provisions) Act 2011 inserted a new subsection 2A in section 79 of the Employment Equality Acts which provides:

“(a) Where the Director considers that the case may be dealt with on the basis of written submissions only, the Director shall notify the parties in writing of his or her proposal to do so.

(b) A notification under paragraph (a) shall inform the parties of the right to make representations to the Director in accordance with paragraph (c).

(c) A person who receives a notification under paragraph (a) may, within 28 days from the issue of the notification, make representations to the Director as to why the case should not be dealt with on the basis of written submissions only.

(d) Where, in representations made pursuant to paragraph (c), objection is made to the Director dealing with the matter on the basis of written submissions only, the Director shall not determine the matter in that manner.”

2.5 Having read the written submissions the Commission considered that the case could be dealt with on the basis of these submissions. Accordingly, the Commission gave notification of this to both parties and asked them to respond within 28 days. Both parties confirmed within 28 days that they had no objection to the matter being dealt with on the basis of the written submissions.

2.6 Preliminary Issue complaint submitted under Equal Status Acts

2.6.1 The complainant’s initial complaint was submitted under the Equal Status Acts on 5th of December, 2013. Upon receipt of this complaint form it became apparent that the matters referred therein were more appropriate to the Employment Equality Acts as the allegations referred to incidents and allegations made by the complainant against the respondent which involved an employment relationship. The Tribunal wrote to the complainant asking him to clarify that he wished his complaint to be investigated under the Employment Equality Acts. The complainant replied on 19th of December, 2013 stating that he wished for his complaint to be investigated under the Employment Equality Acts.

2.6.2 Notwithstanding the fact that the complainant’s initial complaint was submitted under the Equal Status Acts I am satisfied that the complainant intended for his complaint to be investigated under the Employment Equality Acts and that he clarified this with the Tribunal within a few weeks of submitting his complaint, thus the respondent is not in any way disadvantaged by the fact of the original complaint having been taken under the Equal Status Acts. Accordingly the complainant was advised on the 8th of January, 2014 that his case was to be dealt with under the Employment Equality Acts.

3. Summary of complainant’s case

3.1 The complainant submits that

while he was on sick leave, due to mental disabilities, the respondent pursued a complaint of sexual harassment against the complainant, he submits that this amount to harassment,

his emails and texts were stored by the respondent without the complainant’s permission,

he was accused of sending harassing and threatening emails to his colleagues following his disclosure of his sexual orientation and disability,

he was told not to enter the respondent College due to his alleged threatening and inappropriate behaviour,

prior to this the complainant had disclosed his mental disability and sexual orientation,

he was reported to the Gardai by his colleagues and arrested when he was sick and suicidal,

the respondent refused to permit him to withdraw his resignation.

4. Summary of Respondent’s case

4.1 The respondent submits that

the complainant worked as a systems administrator, where he managed and maintained IT systems for users, including researchers and academics,

in April 2013, a colleague of the complainant, Mr. D reported that he had been receiving emails and texts from the complainant which were of a sexual nature, and referenced Mr D and his family,

on 3 May 2013, Mr D made a formal complaint of sexual harassment against the complainant,

the complainant went on sick leave around this time but continued to send emails to Mr. D and other colleagues ,

the college was concerned for the complainant’s capacity to deal with this complaint while out on sick leave, so they awaited the outcome of medical referrals to ascertain whether the complainant was fit to engage in the process,

the complainant continued to send offensive and explicit emails and texts to Mr. D and other colleagues in the interim,

the complainant was asked a number of times to desist form emailing or contacting Mr. D

the complainants work email was shut down as he persisted in sending the emails,

the complainant resigned his employment in August 2013.

5. Disability Ground and Notification of Disability

5.1. It is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.

Disability” is defined in Section 2 of the Acts as meaning –

“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of 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”.

5.2 The complainant submits that he is suffering from a mental disability and mental disorders. He submits that he suffers from psychosis and schizophrenia, and experiences bad bouts of suicidal depression and OCD as well as other psychiatric and psychological disturbances. He submits that he has been on multiple and high doses of very strong antipsychotic medications and recently has been receiving long term therapy for a year because of what happened (referring to the respondent’s alleged treatment of him). He submits that he has been admitted to a psychiatric hospital several times. The complainant submits that he went on sick leave from work due to workplace stress and that he had submitted sick certs to the respondent to verify this. The complainant submits that the respondent was aware that he was seeking psychiatric help. The complainant has submitted that he was on a number of occasions since the commencement of this sick leave referred by the respondent to and Occupational Health Specialist who assessed his fitness to work.

5.3 The respondent has submitted that a number of complaints were submitted by a colleague of the complainant Mr. D in April 2013 alleging that the complainant had been sending him emails and texts of a sexual nature. This matter was reported to the complainant’s supervisor and the complainant was instructed to stop sending the emails. The emails continued and on 29th of April, 2013 the complainants colleague Mr. D advised the respondent that his email had been accessed by the complainant who sent an email from Mr. D’s account pretending to be Mr. D. The respondent submitted that the complainant continued to send emails to Mr. D and other colleagues and that he commenced sick leave around this time. The respondent submits that in or around 1st of May 2013, Mr. F of the respondent phoned the complainant to advise him to seek assistance of a doctor or other medical professional as he was concerned for the complainants well being. An appointment was also made with the respondents occupational Health Physician at this time. This report dated the 17th of May 2013 indicates that the complainant at the time advised that he was attending his GP and Psychotherapist. The respondent submits that it became aware in the days following the 14th of June 2013 that the complainant had presented for treatment in St. Brigid's Hospital which provides Mental Health Services. The respondent submits that on this basis it was concerned for the complainant’s health and mindset.

5.4 I am satisfied, from the totality of the evidence adduced on this matter, that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2015. I am also satisfied that the that the respondent became aware of the complainant’s disability in or around the end of April start of May 2013 after a colleague made a complaint against the complainant for sending him inappropriate emails and text messages.

6. Findings and Conclusions of the Equality Officer

6.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of his disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, and in relation to a failure to provide him with reasonable accommodation for his disability. There is also a claim of discrimination on grounds of sexual orientation as well as claims of Harassment, sexual harassment and of victimization. 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 at the Hearing.

6.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

6.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur 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)…..”

Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, … that one is a person with a disability and the other is not or is a person with a different disability”

Section 6(2)(d)of the Acts defines the discriminatory ground of sexual orientation as follows -“as between any 2 persons, … that they are of different sexual orientation “

6.4 Reasonable accommodation

6.4.1 Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club[1].

6.4.2 In the case of A Health and Fitness Club -v- A Worker[2] the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation.

6.5 Discrimination and Harassment on grounds of Disability and Sexual Orientation

6.5.1 The complainant submits that the respondent disseminated and stored his privately written and sensitive communications freely among staff. He submits that personal text messages were exchanged with the manager and that this was a violation of privacy. He submits that the private phone numbers were given to him, in a gesture (or ‘pretence’) of friendship, and not on a professional basis.

6.5.2 The complainant submits that following disclosure of his disability and sexual orientation he was accused of harassment and sexual harassment and that a complaint was made against him. The complainant submits that this complaint was a homophobic assault designed as a complaint that forced the complainant onto sick leave and was used to harass, discriminate and belittle him by HR and staff of the respondent due to his coming out in the workplace and for being gay. The complainant submits that the complaint also targeted him because he had mental disabilities and was on medications.

6.5.3 The complainant submits that the complaint against him continued to exacerbate his mental health situation. He submits that there was no response from HR or any kind of integration strategy in place to help him or get him back into work. He submits that he had attended the occupational doctor several times, and the doctor said an investigation would have to happen at the first meeting, but this never happened. The complainant submits that HR continued to control him while he was on sick leave, and to force this complaint onto him, and that he continued to deteriorate in mental health.

6.5.4 The complainant submits that the respondent continued to gather evidence and used his sickness against him. He submits that the respondent eventually transferred their discriminatory actions and opinions to the Gardaí who arrested him. He submits that the Gardaí presented a bundle of his psychotic writings that happened because of these discriminatory assaults by the respondent. He submit s that the respondent had reinterpreted ‘loosely’ fragments of his numerous and lengthy writings to say that he was threatening but this was not the case.

6.5.5 The complainant submits that the report to the Gardaí was only made after the complainant submitted a whistleblowing complaint before the arrest, about illegal wares (movies, software, music) on computer systems and about senior staff, did the respondent act. He submits that his actions and writings were only presented to the Gardaí as an act of reprisal by the respondent. The complainant submit s that the involvement of the Gardaí caused him greater distress for months and exacerbated his symptoms.

6.5.6 The complainant submits that the last discrimination was when the respondent illegally terminated his contract without authorisation.

6.5.7 The respondent in response to these matters submits that in April 2013, a colleague of the complainant Mr. D reported to his manager, informally in the first instance, that he had been receiving emails and texts from the complainant which were of a sexual nature, and referenced Mr D and Mr D’s family. Initially, attempts were made to deal with this informally but matters did not improve and the emails and texts persisted, and continued to cause Mr D much distress. Toward the end of April 2013, matters increased in seriousness with a particularly offensive and upsetting series of emails were sent in the period 24 -26 April 2013 (submitted in evidence). The complainant’s manager Mr. F instructed the complainant to stop sending emails but still they continued. On 29 April, Mr D’s work email was accessed by the complainant and an email pretending to be from Mr D was sent by the complainant.

6.5.8 The respondent submits that the complainant continued to send emails to Mr D and his other colleagues. The complainant commenced sick leave at this time. The emails continued throughout his period of sick leave. In or around 1 May 2013, Mr F spoke with the complainant over the phone, to try to understand what was happening. The respondent submits that in or around 2 May 2013, management took a decision to remove the complainants access to the IT systems and lock him out of his work email address, due to the continued persistent nature of the inappropriate emails. The complainant continued to send offensive and disturbing emails to his colleagues from his Gmail account however.

6.5.9 The respondent submits that on 3 May 2013, Mr D made a formal complaint of sexual harassment against the complainant. As the complainant was on sick leave, the College was concerned for his capacity to deal with receipt of this complaint, and a resultant investigation. An appointment with the occupational health physician was arranged for the complainant at this time. The College also sought advice on whether or not the complainant was medically fit to engage with the College on the issue of the inappropriate emails. The College awaited the outcome of the medical referral scheduled for 7 May 2013.

6.5.10 The respondent submits that the College received a medical report from the occupational health specialist in mid-May 2013 which stated that the complainant would be fit to return to work and engage in the investigative/resolution process regarding the emails, after a further three to four weeks of sick leave, to allow his treatment plan time to stabilise.

6.5.11 The respondent submits that on 21 May 2013 the College wrote to the complainant to schedule a return to work meeting but on 30 May 2013, the complainant advised his manager that he would not return to work and would remain on sick leave. The College accordingly scheduled a further occupational health appointment to review the complainant’s situation.

6.5.12 The respondent submits that on 3 June 2013, the complainant sought to resign his employment but as he was on sick leave, and the college was concerned for him, this resignation was not accepted. The complainant continued to send excessive and abusive emails to his colleagues, including Mr D, and the staff relations team.

6.5.13 It is submitted that on 7 June 2013, the complainant attended his scheduled occupational health appointment and the occupational health physician advised the College that the complainant was fit to participate in the investigative process. The complainant had previously been made aware that a complaint had been submitted, but had not been provided a copy of the complaint nor had the investigation commenced as the College were awaiting confirmation that he was medically fit for same.

6.5.14 The complainant was advised of the terms of reference for the investigation and the process to be followed. The complainant was again formally instructed to desist from sending emails or making contact with Mr D. The complainant continued to send excessive quantities of emails to various colleagues and employees, despite being advised and requested not to.

6.5.15 In or around 12 June 2013, the complainant obtained membership of SIPTU and sought the involvement of Mr P, SIPTU official, in matters. On 12 June 2013, the complainant (via Mr P, upon his instruction) was advised of additional disciplinary matters which were to be the subject of an investigation, specifically (a) refusal to comply with reasonable instructions, by persisting to send emails to colleagues, including Mr D, despite being instructed not to and (b) breach of the College’s IT policy and abuse of system administrator privileges, by accessing other colleagues email and network accounts. Thereafter, Mr P and Ms M, HR, discussed matters. It appeared on around 14 June that the complainant wished to resign his employment, and the College were in a position to accept that resignation. However, over the following days, it came to the College’s attention that the complainant had presented for treatment at St Brigid’s Hospital. On that basis, the respondent was concerned for the complainant’s health and mind-set, and did not accept or implement the resignation.

6.5.16 The respondent submits that the complainant was scheduled for a further appointments with occupational health on 9th of July , which was rescheduled for 12 July and again rescheduled for 18 July 2013. The emails persisted throughout this time. On 17 and 18 July 2013, the content of the emails further escalated to involve threats of violence, including sexual violence, against Mr D and Mr D’s son. College Human Resources contacted the Secretary’s office, out of its duty of care to Mr D. On 22 July 2013, the complainant was barred from the College campus until further notice due to potential serious security risks. The nature of the email correspondence necessitated such action. The content of the emails also required further investigation under the disciplinary procedure. The College awaited medical information regarding the complainant’s fitness for same.

6.5.17 The respondent submits that the complainant continued to send vast quantities of emails, many containing inappropriate and concerning content, to large numbers of the respondents employees. The complainant also resigned again during July, and again these resignations were not accepted, out of concern for the complainant’s state of mind.

6.5.18 It is submitted that the College understands that matters were reported to the Gardaí during this time. The College cooperated with the Gardaí in their investigation. The complainant was arrested on 9 August 2013 and released without charge. He was specifically instructed by the Gardaí to desist from sending emails that were likely to cause further distress to any party, and was explicitly advised not to make any contact with Mr D.

6.5.19 The respondent submits that a further occupational health appointment was set up for 7 August 2013, rescheduled to 12 August 2013. The complainant did not attend. The College asked the occupational health physician to provide an assessment of whether or not the complainant was fit to engage with the College on outstanding issues. By report of 14 August, the occupational health physician advised that based on his review of the medical notes, and a review of correspondence and telephone conversations with the complainant’s GP and specialist, the complainant was fit to engage with his employer on the outstanding issues.

6.5.20 It is submitted that on 16 August 2013, after being advised by the doctor that the complainant was fit to engage on the outstanding issues, the complainant was formally notified, via Mr P of SIPTU of the further disciplinary matters against him specifically (a) threatening serious acts of violence, (b) further serious breach of the harassment policy, and (c) refusal to carry out reasonable instruction. On 22 August 2013, the complainant submitted a formal letter of resignation through his trade union representative Mr. P. Based on the fact that the resignation had been submitted by the trade union official (and therefore on foot of appropriate advice) and based on the recently obtained medical advice that the complainant was fit to engage with the College, the College accepted the resignation. The respondent submits that the complainant in September 2013 sought to withdraw his resignation but the respondent in the circumstances refused this request.

6.5.21 The complainant’s allegations of discrimination in respect of his sexual orientation and disability centre on the fact that a complaint was lodged against him by a male colleague to whom it is alleged by the respondent that the complainant had sent numerous texts and emails of a sexual nature and some of a threatening nature. The colleague had reported these matters to the respondent and had lodged a complaint under the respondent dignity in the workplace policy. The respondent in its evidence has presented copies of these texts and emails as well as a copy of the complaint lodged by Mr. D the complainant’s colleague.

6.5.22 It is agreed by the parties that the complainant went on sick leave about this time and so the respondent did not proceed with the investigation process until it had sent the complainant for medical assessment to ascertain whether he was well enough to engage in the process. I am satisfied from the totality of the evidence adduced that the respondent having received a complaint of this nature from a colleague of the complainant under the dignity and respect policy and given the circumstances of the case that this was unrelated to the complainants sexual orientation and or disability and would have proceeded irrespective of the complainant’s sexual orientation and or disability. I am also satisfied that the college by proceeding with the complaint under its Dignity and respect policy had an obligation to Mr. D and that this was unrelated to the complainant’s disability and or sexual orientation. I am satisfied from the totality of the evidence adduced here that the complainant was not discriminated against by the respondent on the ground of sexual orientation or on the disability ground in relation to this matter.

6.5.23 The complainant submits that he was forced to take part in a complaint/disciplinary process following his disclosure of his mental disability and that this amounts to a failure to reasonably accommodate the complainant. I am satisfied from the totality of the evidence adduced that the respondent in this case acted reasonably by ensuring that the complainant despite being out on sick leave was fit to participate in the complaint/disciplinary process by referring the complainant for appropriate medical investigations and assessments. I am thus satisfied from the totality of the evidence adduced that the complainant was not discriminated against by the respondent in relation to these matters and that this does not amount to a failure to reasonably accommodate the complainant.

6.5.24 The complainant also submits that the respondents failure to accept the withdrawal of the complainants resignation amounts to discrimination on grounds of disability and a failure to provide him with reasonable accommodation for his disability. I am satisfied from the totality of the evidence adduced that the complainant was not discriminated against by the respondent on the grounds of his disability and or sexual orientation in relation to these matters and that this does not amount to a failure to reasonably accommodate the complainant.

6.6 Harassment

6.6.1 Harassment is defined in Section 14A(7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

6.6.2 The complainant has submitted that the respondent’s pursuit of the complaint of harassment/sexual harassment against him amounts to harassment and or sexual harassment of him and submits that he was harassed and/or sexually harassed by the respondent on grounds of his sexual orientation and on grounds of his disability in respect of this matter. I am satisfied from the totality of the evidence adduced that the complainant was not harassed and/or sexually harassed by the respondent on grounds of his sexual orientation or on grounds of his disability.

Victimisation

7 Victimisation

7.1 The complainant has submitted that he was victimised by the respondent. A claim of victimisation under the acts does not require a ground and so I will examine the claim of victimisation separately.

7.2 Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:

“For the purposes of this Part 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………….

(f) an employee having opposed by lawful means and act which 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”

7.3 In Tom Barrett v Department of Defence[3] 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.

7.4 The complainant in his submissions did not adduce any evidence of adverse treatment by the respondent which followed a protected act. 7.7 Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has failed to establish a prima facie case of victimisation by the respondent in relation to these matters.

8. DECISION

8.1 I have completed my investigation of this complaint and in accordance with section 79(2A) of the Employment Equality Acts, I issue the following decision. I find –

(i) that the complainant was not discriminated against by the respondent on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of his conditions of employment and/or in respect of his termination of employment

(ii) that the complainant was not discriminated against by the respondent on grounds of sexual orientation in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of his conditions of employment and/or in respect of his termination of employment

(iii) the complainant was not harassed or sexually harassed by the respondent on the grounds of disability contrary to Section 14A of the Acts

(iv) the complainant was not harassed or sexually harassed by the respondent on the grounds of his sexual orientation contrary to Section 14A of the Acts

(v) the respondent did not discriminate against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in relation to a failure to provide reasonable accommodation within the meaning of section 16 of the Acts.

(vi) that the complainant was not victimised by the respondent contrary to Section 74(2) of the Employment Equality Acts, 1998-2015.

__________________

Adjudicator

21st of August, 2017

Footnotes

[1] [2004] 15 ELR 296

[2] Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)

[3] EDA1017