DEC-E2017-046

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2017-046

PARTIES

A Bank Official

Complainant

AND

A Bank

(Represented by Seamus Clarke, BL,

instructed by Teresa Kelly, in-house solicitor)

Respondent

File references: EE/2012/67 and PEN/2012/19

Date of issue: 12 June 2017

1. Introduction:

1.1 On the 30th May 2012, the complainant referred a complaint pursuant to the Employment Equality Acts to the Equality Tribunal regarding discrimination on grounds of age, disability and gender. On the 10th May 2012, the complainant referred a complaint pursuant to the Pensions Acts on grounds of age against the same respondent. The complainant is a bank official and the respondent is a retail bank.

1.2 This dispute has a protracted history, going back to the decision of the respondent to suspend the complainant in 2006. The complainant also lodged grievances going back to 2002. The complaint pursuant to the Employment Equality Acts was subject to a preliminary hearing on the 30th July 2014 and after the exchange of additional submissions, a decision issued on the 2nd December 2014. The decision held that all of the elements of the claim were statute-barred, in accordance with section 77(5) of the Employment Equality Act. The complainant appealed this preliminary determination to the Labour Court. In its determination of the 30th April 2015, the Court held that the claims regarding a requirement that the complainant retire at 60 and his request to work on a full-time basis were within time. The Court held that all remaining elements of the claim were statute barred or misconceived in law. The Employment Equality complaint was then remitted to the Equality Tribunal / Workplace Relations Commission.

1.3 On the 5th February 2016, in accordance with powers under section 75 of the Employment Equality Acts and section 81J of the Pensions Acts, the Director delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under these Acts, on which date my investigation commenced. As part of my investigation I proceeded to hearing on the 20th June 2016.

1.4 These decisions are issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

2. Submissions and evidence of the complainant:

2.1 The complainant spent his career working for the respondent and was employed as a bank official at a branch of the respondent bank. By 2006, the complainant had reached the level of Relationships Manager, effectively the number ‘2’ in the branch. In the early 2000s, the respondent had appointed a more junior person as bank manager and had actively discouraged him from applying for this post. It is also of note that in 2004, the complainant became part-time, a change he made for family reasons. In 2006, the complainant’s relationship with the respondent took a new course when he was placed on suspension following an incident with a customer on a busy Friday preceding a Bank Holiday weekend. The complainant outlines that he behaved appropriately in this incident and also challenged the veracity of statements submitted by bank colleagues regarding this same incident. The complainant outlined that his employment with the respondent ended on the 31st January 2016, when he was contacted by the respondent to say that he had reached pension age.

2.2 Addressing the issue of his wish to return to full-time work, the complainant outlined that he corresponded with a named bank official on the 3rd November 2011 to ask that his hours be restored to full-time. He said that he wished to increase his take-home pay and was also conscious that his pension would be calculated according to his salary for the last two years of employment. He corresponded with the same bank official on two further occasions and never received a response from the respondent. He would have applied to work full-time at an earlier time, except he was subject to the ongoing suspension since the year 2006. The complainant referred to the respondent’s letter of the 23rd February 2004 and the clause therein addressing his return to full-time employment. This provides that he has the option to return to full-time employment after the end of two calendar years. He outlined that that he attributed the refusal of the respondent to allow him work full-time to discrimination on grounds of disability. He outlined that his disability arises out of the loss of a kidney following a physical assault, and consequent nephrology issues. The complainant said that the respondent had sought for him to retire in an offer made to his union, but he had wished to return to full- time employment prior to availing of the pension scheme. He also wanted to clear his name and address the issues that led to his suspension in 2006.

2.3 In respect of his suspension, the complainant did not believe that the respondent ever intended to progress the investigation into the allegations made. He had met with one investigator, but this did not progress. He never heard from a second investigator and no further action was taken. The complainant referred to CCTV evidence that the respondent initially had said that it had viewed and kept, but later said was not available. He outlined that the failure to produce the CCTV was indicative of the respondent’s refusal to progress the investigation. He also said that his own grievances were never progressed.

2.4 In respect of the claim that the respondent had wished to require him to retire at 60, the complainant said that this was contained in an offer made to his union, where he would return to work for one month and then retire at age 60. He also outlined that it was a clause of his contract of employment that he could retire at any time after 60 as his employment with the respondent had commenced before he was 21. He would have then been in a position to avail of the pension scheme.

2.5 The complainant outlined that he had been discriminated against in not having his application for the 2012 voluntary redundancy package processed by the respondent. He said that the respondent had implemented a number of voluntary redundancy packages, most of which he did not hear about as he remained on suspension. It had been a named bank official who had forwarded him the details of the 2012 scheme. The complainant identified option ‘2’ as the most appropriate. He contacted the respondent in order to avail of the scheme, but never received a response, other than an acknowledgment. The bank official later contacted the complainant to say that he had learnt from the respondent that it would not process the application because of outstanding issues. The complainant understood that this referred to the long-outstanding investigation, his grievances and other litigation taken by the complainant against the respondent.

2.6 In respect of the Pensions Act complaint, the complainant confirmed that this claim related to discrimination on grounds of age. He also outlined that this claim related to his application for the voluntary redundancy package. He had been eligible to avail of the scheme as he had reached 60. He said that a lump sum was obviously attractive to support his family and he expressed the desire to keep his options open. He said that he was excluded from voluntary redundancy packages as he was suspended and prevented from contacting colleagues.

2.7 In cross-examination, the complainant confirmed that he had attended settlement negotiations in the Law Library regarding personal injury litigation between him and the respondent. He also accepted that the union had represented him at a later stage in negotiations with the respondent. He said that he had refused the offers that provided he retire at 60 as he wished to keep his options open. It was put to the complainant that at the time of his letter in November 2011 seeking to return to work full-time, there were negotiations in train between the respondent and the union, acting on his behalf. The complainant replied that he never met the bank representative identified but acknowledged that he had received assistance from a named union official. It was put to the complainant that he had been deemed by his GP as unfit to work in late 2010 and it was only then that the respondent suggested that he be referred to a named psychiatrist. The complainant replied that he never refused to attend this medical assessment and had waited for an appointment. It was put to the complainant that he submitted certificates in 2010, 2011 and 2012 to the Department of Social Protection regarding his inability to work; the complainant said that this was the case and that he had also been the subject of medical assessment by the Department. The complainant also confirmed that he had submitted an application for voluntary redundancy and had not sought to avail of the pension scheme.

2.8 In further evidence, the complainant said that the respondent had acted incorrectly in referring him to a psychiatrist. There had been four medical reports and none suggested a basis for such a referral. This suggestion was demeaning to him. He should have been referred to a nephrologist and referred to a report submitted by his own consultant regarding his health. The complainant said he wanted to clear his name and to resolve both his own grievances and the accusations made about him.

3. Submissions and evidence of the respondent:

3.1 The respondent submitted that the claim made pursuant to the Pensions Act cannot succeed as the complainant did not seek to avail of the pension scheme. He had not sought to retire early, but instead had sought to apply for a voluntary redundancy scheme in 2012. It outlined that employees are never informed of option to retire early, but that information is circulated regarding voluntary redundancy packages. It was submitted that the complainant has conflated early retirement with voluntary redundancy packages.

3.2 In respect of the requirement to retire at 60, the respondent said that this only arose in the context of an offer made in settlement negotiations with representatives of the complainant, in particular in offers circulating in the period between November 2011 and March 2012. The offer included that the complainant returning to work for one month and he would then retire on a pension based on full-time employment. There was never a requirement for the complainant to retire. It was submitted that the fact that the complainant continued as an employee of the respondent until 65 is testament to this.

3.3 In respect of the return to work, the respondent submitted that at the time the complainant made his request, there were negotiations between it and his representatives. It was also submitted that he was, by this stage, a part-time employee for seven years. Furthermore, the complainant’s GP had certified him as unfit for work. The complainant was then on Special Leave, but later on sick pay between 2014 and 2016 as the respondent‘s occupational health provider had concluded in 2014 that he was unfit for work. Ordinarily, the complainant’s salary would have been reduced after six months on sick pay, but the complainant was kept on his full sick pay. It was submitted that on the 4th August 2010, solicitors for the complainant indicated that he was unfit for work and this position was maintained from then on. The respondent’s medical assessments had initially suggested that the complainant was fit for work, but this differed from the certificates submitted by the complainant. It was submitted that any return to work was predicated on the complainant being fit to work.

3.4 In respect of the suspension, the respondent submitted that this was not within the scope of the complaint as the preliminary decision of 2012 had struck out the claims in their entirety, while the Labour Court had determined that only two issues be remitted to this hearing. It outlined that the suspension arose out of a customer complaint and complaints made by colleagues of the complainant. He in turn raised grievances, going back to 2002. The respondent appointed an investigator and following the death of the first investigator, the respondent appointed a second investigator in 2009. The complainant, through his solicitors, objected to both appointments and his solicitors had threatened injunctive proceedings of the second appointment. He also refused to engage with this second investigator, causing the second investigator to end his involvement in 2010. At this time, the complainant had raised his fitness to work on health grounds. The respondent referred to an agreement that the complainant would return to his former branch on the 18th October 2010, but his solicitors had then submitted a medical certificate to say that he was unfit to work.

3.5 The respondent outlined that in March 2011, negotiations had taken place with lawyers for the complainant to resolve litigation and outstanding issues with the complainant. They were not successful. The union then represented the complainant and there were further negotiations between November 2011 and March 2012. They too were not successful. The respondent outlined that there had been a conflict in medical evidence, where its doctors certified the complainant as fit. They suggested a particular referral and that this particular doctor was often used in employment law. Solicitors for the complainant did not object to the suggestion. The complainant was later placed on sick pay when a further occupational health assessment confirmed that he was not fit to work.

4. Findings and conclusions:

4.1 The issues in dispute have a protracted history. The complainant commenced employment with the respondent in 1971 and this came to an end on the 31st January 2016. It is certainly an unusual feature of this case that the complainant spent the years between 2006 and 2016 on Special Leave or suspension. This commenced following a customer complaint made against the complainant regarding an incident of the 4th August 2006. It is a notable feature of this case that the investigation of this matter was never finalized. The respondent exhibited statements collected from colleagues of the complainant in and around this time. No concluded investigation report was ever issued by the respondent.

4.2 Following the Labour Court determination of the 30th April 2015, it is clear that the claims regarding a requirement that the complainant retire at 60 and his request to work on a full-time basis were within time. The Labour Court held that the other issues identified in the Equality Tribunal were out of time. The whole claim pursuant to the Pensions Act is within time. Having reviewed the extensive paperwork and considered the oral evidence and submissions, it is notable that the issue of complainant being placed on special leave or suspension did not form part of deliberations at the first Equality Tribunal hearing, and therefore not considered on appeal. The issue of the suspension is explicitly stated in the complaint form. It states “on special leave/suspension discrimination is ongoing.” I am conscious that the complainant was not legally represented and that there had been a great number of issues to consider and to make submissions on in the course of this litigation.

4.3 Section 77 of the Employment Equality Acts provides a limitation period within which claims must be made. Section 77(5)(a) of the Acts provides:

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

Section 77(6A) provides: -

“For the purposes of this section —

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) [not relevant]

(iii) [not relevant].”

4.4 In Hurley v County Cork VEC (EDA 1124), the Labour Court held in respect of sections 77(5) and (6A),

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] IRLR 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred.”

Also in Hurley, the Labour Court commented on section 77(5) as follows:

“Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

4.5 Considering similar provisions, the UK Employment Appeal Tribunal in Owusu v London Fire & Civil Defence Authority [1995] IRLR 574 held:

“The position is that an act does not extend over a period simply because the doing of the act has continuing consequences, A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice which results in consistent decisions discriminatory of Mr Owusu.”

The EAT continued:

“We emphasise that, even if it was established that there were some practice built up of denying Mr Owusu upgrading or the opportunity to act up, it would still have to be proved that it was a discriminatory practice. It may be that the respondents can satisfy the tribunal, when they hear the case on the merits, that there are alternative explanations for the treatment of which Mr Owusu makes complaint. But those are all matters for investigation on the merits. We are satisfied that this tribunal erred in law in failing to appreciate that a succession of specific instances could indicate the existence of a practice, which in turn could constitute an act extending over a period which is a continuing act.”

4.6 Having considered the evidence of the parties, I conclude that the placement of the complainant was special leave or suspension was a continuing act, as opposed to an act with continuing consequences. It, therefore, falls within the scope of this adjudication.

4.7 Section 85A of the Employment Equality Acts sets out the burden of proof in relation to complaints of discrimination. It requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. If the complainant can establish the necessary facts, and where they are of such significance to raise the presumption of discrimination, the burden of proof then falls to the respondent.

4.8 Applying the legal test to the evidence adduced at the hearing and in the parties’ documentation, I make the following findings. The first issue to address is whether the respondent sought to make the complainant retire at the age of 60. Having considered the evidence of the parties, I find that the complainant has not established a prima facie case of discrimination. I accept what the respondent states. The proposal that the complainant retire at 60 was made at a time when he had already been out on special leave for a considerable period and in the context of settlement talks related to other litigation between the parties. Ultimately, the complainant continued in the respondent’s employment until his retirement in early 2016.

4.9 The second issue is the complainant’s request to return to work on a full-time basis in November 2011. The complainant outlines that he had been in discussion with a named bank official, but this matter was never finalized. He asserts that this was because the respondent discriminated against him, in particular on the grounds of disability. The respondent denies the claim. I note that the complainant had been out of work for some time and medical certificates provided to say that he was not fit for work. Again, I am struck by the difficult circumstances in which both parties found themselves. Notwithstanding the fact that the complainant had been on part-time hours for a considerable period of time, the more significant issue was his absence from the workplace at all. There was toing and froing over whether the complainant was fit to attend work, and also discussions about the complainant retiring. Taking everything the parties submitted, there is insufficient evidence to establish as a primary fact that the decision not to facilitate the return of the complainant to full-time hours was in any way associated with his disability or any other ground.

4.10 In respect of the special leave / suspension, I note that the issue largely emanated from the interaction between the complainant and a customer on the 4th August 2006. The respondent gathered statements from colleagues. In the ordinary course, this matter should have been concluded following an investigation and if warranted, a disciplinary procedure. Instead, the complainant was placed on leave and never returned to work over a period of ten years. This is a most undesirable situation, but having looked at the evidence, it was an industrial relations matter. There is no prima facie case of discrimination on the grounds of disability or any of the other grounds.

4.11 In respect of the complaint made pursuant to the Pensions Act, I find that this does not succeed as the claim does not relate to access to a pension, but access to a voluntary retirement package. This is not a matter that falls within the scope of the Pensions Act.

4.12 Taking these findings together, the case does not succeed as a prima facie case of discrimination has not been made out. The Pensions Act claim does not fall within the scope of that Act. I appreciate the position of both parties in this protracted case, in particular the complainant who has sought to address this difficult situation through various ways, including this litigation.

Decision:

5.1 I have concluded my investigation of both complaints. I find that, pursuant to Section 79 of the Employment Equality Acts, the complainant has not established either direct or indirect discrimination on grounds of disability, gender or family status. Furthermore, I find that the complainant has not succeeded in establishing discrimination on the age ground pursuant to the Pensions Act.

_______________________________

Kevin Baneham

Adjudication Officer / Equality Officer

12 June 2017