DEC-E2017-017

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2017-017

PARTIES

Thomas Finlass

(Represented by Claire Bruton BL instructed by

Ronan Daly Jermyn solicitors)

Complainant

v

An Post

(Represented by Tony Kerr BL instructed by Freda Mahon, Deputy Company Solicitor)

Respondent

File reference: et-156323-ee-15

Date of issue: 1 March 2017

1. Introduction:

1.1 On the 12th May 2015, the complainant referred a complaint pursuant to the Employment Equality Acts to the Equality Tribunal / Workplace Relations Commission. The complaint was scheduled for hearing on the 20th May 2016.

1.2 The complainant was represented by Claire Bruton BL instructed by Ronan Daly Jermyn solicitors. Tony Kerr BL attended for the respondent, instructed by Freda Mahon, Deputy Company Solicitor. Mark Graham, Head of Employee Relations and Elaine Birmingham, HR Manager attended as witnesses for the respondent.

1.3 On the 17th May 2016, in accordance with his powers under section 75 of the Employment Equality 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 Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 20th May 2016.

1.4 This decision is 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 complaint relates to discrimination on grounds of disability. The complainant outlines that he suffered detrimental or less favourable treatment and discrimination in the context of his pay and his seniority as compared to employees with no disabilities who had been redeployed for non medical reasons. The complainant refers to three EE2 forms requesting information from the respondent regarding the number of staff who had been medically redeployed who had lost pay and seniority as well as the number of staff who redeployed who retained both. The complainant asks that inferences of discrimination be drawn from the failure to supply the sought-for
information. The complainant submits that he should be at 27 in seniority, but as of May 2015, he is 41. His seniority in his current role is counted from January 2007 and he contrasts this with casual staff who had their service recognised to the start of their casual employment on being made permanent.

2.2 The complainant had initially been employed in December 1999 for the Christmas period and re-employed in June 2000. In 2002, the complainant moved to the new Athlone Mail Centre. As this was not a voluntary move, he retained his seniority. The complainant took on night duties in 2002, where he worked from 7pm to 3.30am, carrying out various roles. While there was no immediate imapct on his health, the night work lead to his social isolation. He became ill in 2004, suffering from mood swings and developed a hatred of going into work. He said that this was caused by the night hours and the repetitive, factory-like nature of the role. He submitted medical certificates and while they referred to stress, he was suffering from depression. He received counselling and was prescribed medication. He dealt with the respondent company nurse as well as his own GP and psychologist. In 2005, he went on a period of sick leave and met with the respondent Chief Medical Officer. The complainant discussed with the CMO his hours and duties and it was agreed to put the complainant on days. The respondent Chief Medical Officer recommended that he not work nights and transfer from postal sorter to the role of post person.

2.3 The complainant said that the offer to return to work was made by letter of the 17th November 2006 and that he would be returning as a post person in the Athlone Delivery Service Unit. He was then 26 years of age and anxious to go back to work. He had understood that he would lose his seniority but did not then foresee the impact this loss of seniority would have down the line, for example in relation to his taking on annual leave in 2015. He said that following a medical redeployment, a person lost their seniority and their rate of pay.

2.4 The complainant commenced the new role on the 15th January 2007 and did not see the CMO again. He had been a postal sorter, but was now a post person. His rate of pay had been €580, but had been reduced to €513. Effectively, his service between the years of 1999 and 2007 was to be disregarded. Overall, his seniority was reduced from 27 to 41 due to later inter-transfers and deployments. Ten people had surpassed him when they became permanent, having been casuals. There were two others who transferred in from Returned Letters. It was practice that if a person was redeployed from a surplus area, they kept their pay and seniority. On the other hand, if a person transferred on other grounds, they lost their rate of pay and seniority.

2.5 The complainant referred to ‘LAMP’, a programme introduced to manage sick leave and provides that following a medical redeployment, the employee keeps their pay and conditions. It was on this basis that the complainant had referred complaints to the LAMP Monitoring Group. The complainant had raised his pay and his loss of seniority with the Monitoring Group in 2009 and 2011. The pay issue had been rectified in 2011, but only going forward. He had incurred a loss of income of €19,000 between 2007 and 2011.

2.6 The complainant said that he had first raised the issue of his seniority after five casuals were made permanent and became more senior than him when their service was backdated to the start of their employment as casuals. On the 30th April 2015, the Monitoring Group had not upheld his complaint. The complainant referred to a named colleague who had initially lost her seniority and pay following her transfer from nights. She complained to a named trade union and was restored her seniority and rate of pay. While the respondent had said that she was surplus, this person was listed on the transfer list to work days in Athlone Delivery Service Unit. She had also transferred to fill a vacancy, as opposed to because she had been surplus. It was also practice that the respondent would complete transfers before it would carry out any redeployments.

2.7 In correspondence dated the 9th May 2011, the union submitted on behalf of the complainant that the 2006 Collection and Delivery Agreement (referred to in this report as the collective agreement) provided for the Postal Operative Grade and this afforded protection to Postal Sorters and Post Office Clerks taking up Postal Operative work; the union states that these protections should have been provided to the complainant on his redeployment and it is submitted that the respondent is acting in breach of LAMP and the collective agreement. In a letter of the 24th August 2011, the union refers the complainant’s pay and conditions to the Monitoring Group for consideration. The Monitoring Group issued its decision on the 27th March 2012, stating that the complainant shall receive the postal sorter rate on a personal to holder basis. In later correspondence, the Monitoring Group stated that the change in the rate of pay should be effective from the 1st November 2011. In subsequent correspondence dated that 22nd July 2013, the complainant raises his seniority, pointing to the differences in how he was treated following the 2002 and 2007 redeployments and that he is now far behind colleagues who commenced their service after him.

2.8 Between October 2014 and May 2015, all offices had been subject to review, where volumes and hit rate had been assessed. In May 2015, new proposals were issued by the respondent. This included a change to routes and new routes were allocated according to seniority. The complainant said that he had been on the same duty every day from 6am to 2pm. He, however, lost this route as a result of these changes. The only routes now available were “leave reserve” and “night duty” but he could not do the latter as it involved night work. Leave reserve involved covering routes that were available because of annual leave or sickness. The duties would differ and included afternoon collection duties where his hours would vary. He could cover 15 to 17 routes and was obliged to make up maps to carry out this work.

2.9 The complainant outlined that seniority impacted on his ability to ake annual leave. He could lose scheduled summer annual leave because of his lack of seniority as more senior colleagues submitted their annual leave requests. He now seeks annual leave in the month of October as he is sure he will be able to avail of it. The last time he was able to take annual leave in the month of August had been in 2005. The complainant is now classified as a reserve post person and would only know his hours, route and duties after others were available to carry out their duties. If redeployment had not occurred, he would have been placed 27 in the depot.

2.10 The complainant outlined that this change had greatly reduced the amount of publicity post he could deliver. This was distributed to staff on a Thursday, but it could be delivered early by staff. There was an additional payment for the duty and he had received €1,100 or €1,200 in the year before the change and €40 in the year after. Staff going on annual leave, for example, could deliver publicity post prior to taking the leave. He said that losing the duty led him to lodge this complaint. He stated that there was one person ahead of him on the reserve list.

2.11 In cross-examination, it was put to the complainant that he was second on the leave reserve list and that the first-placed colleague was 40th in seniority; he agreed with this. It was put to the complainant that should he succeed in this claim, the person placed 39th on seniority would lose their route and become leave reserve; he accepted that this was the case. It was put to the complainant that a named colleague of the complainant had commenced two months before the complainant but he was now placed 49; the complainant said that this colleague had transferred after the complainant had redeployed and accepted that the colleague had lost his seniority. It was put to the complainant that another named colleague joined the respondent in July 1999 but was also placed behind the complainant; the complainant replied that this colleague had transferred from Dublin and lost his seniority. The complainant accepted that redeployment and transfers were regulated by collective agreements. He accepted that he had not been successful in his claim to the Rights Commissioner service. It was put to the complainant that publicity mail is declining; he did not agree with this and said that this was not reflected on the ground. It was put to the complainant that his estimated loss was no more than €6,000; the complainant did not accept this. It was put to the complainant that a colleague he had named had been surplus when she was redeployed; he did not accept that this was the case. In re-examination, the complainant said that the two colleagues raised by the respondent in cross-examination had transferred for personal reasons.

2.12 In closing comments, the complainant outlined that the claim had been lodged within six months of his losing his route; it was therefore within time. It was submitted that it was not legitimate for the respondent to rely on a collective agreement. and referred to the case of Enderby v Frenchay Health Authority (C-127/92) where collective agreements could not be used as a basis to defend discrimination.

2.13 The complainant outlines that the last act of discrimination was the 12th May 2015 and refers to other employees who redeployed and were entitled to retain their seniority. The complainant asserts that the respondent seems to be acting contrary to its LAMP policy in not ensuring similar terms and conditions for an employee redeployed for medical reasons. He relies on section 77(6A) of the Employment Equality Acts as his position of seniority has worsened over time as colleagues have redeployed into his job area and retained their seniority, causing his seniority to fall. It is submitted that the application of the medical redeployment practice constitutes a regime or practice that is discriminatory and extends to the period of 2007 – 2012 and May 2015 and beyond. It further asserts that the respondent has failed to provide reasonable accommodation to the complainant in protecting his seniority and to disapply any discriminatory or adverse effects of his redeployment or disability. The complainant refers to the opinion of the CMO that led to his initial redeployment and the ongoing effects of the redeployment as constituting a regime or practice of discrimination. He relies onA Public Sector v A Worker EDA 1410. It is submitted that the complainant continues to suffer adverse treatment and that the time limits provided in section 77(6A) only run when the practice ceases. The complainant submits that the discriminatory treatment is ongoing so the claim is within time. In the alternative, the complainant refers to discriminatory acts within the six month time limit of the 12th May 2015, i.e. annual leave competitions in January to May 2015, where his application for annual leave was on the basis that the most popular times were taken by more senior colleagues.

2.14 The complainant raised his seniority with the Monitoring Group in 2015 and it issued its decision on the 30th April 2015. It submits that in the context of the Monitoring Group deliberations, the respondent reviewed or reconsidered the position of the complainant, and therefore this constitutes an act of discrimination. The complainant places these acts in a continuum of connected acts from 2007, being less favourable treatment on grounds of his disability or past disability. Moreover, the review of the Athlone Delivery Service Unit, which was implemented in May 2015, also represents a discriminatory act. Routes were reassigned according to seniority and the complainant lost his fixed route and access to publicity post. The complainant acknowledges that the review process concluded after the submission of this complaint and that this is of probative value in assessing the claim.

3. Submissions and evidence of the respondent:

3.1 In opening comments, the respondent submitted that seniority is determined locally and in this case, the two centres in Athlone have separate seniority lists. It pointed out that in Dublin, there are separate seniority lists for clerks and post people. Transfers and redeployment are regulated by collective agreements reached with a named union. It referred to a Labour Court case involving other staff members regarding seniority and the collective agreement. The respondent stated that if the complainant was to succeed, colleagues would lose their seniority. It was submitted that voluntary transfers involve the worker losing their seniority while the position was different for staff deemed surplus, who retained their seniority. The respondent gave as an example a colleague named by the complainant. It was submitted that a worker transfers or redeploys at the same grade. The complainant had been unique in that he had been transferred to a lower grade in Delivery Service Unit; as he had not been surplus, he did not fall within the collective agreement.

3.2 The respondent denies that any act of discrimination occurred on the 12th May 2015 or in the 6/12 month period prior to this date. The complainant had accepted a position in the Athlone Delivery Service Unit as a post person in January 2007 and this occurred in line with the relevant collective agreements. In 2011, the complainant made representations regarding his rate of pay and the Monitoring Group determined that he should be paid the postal sorter rate on a personal to holder basis taking effect from the 1st November 2011. It is submitted that the issue of the complainant’s seniority was not raised on his behalf until August 2013. It was submitted that the complainant’s redeployment to the Mail Centre in 2002 was comprehended by the collective agreement, but the 2007 redeployment to the Athlone Delivery Service Unit was not as a result of surplus staffing. In respect of the claim, the respondent is not in a position to dispute that the complainant has a disability as his medical records are confidential to the Chief Medical Officer.

3.3 In respect of the timing of the complaint, the respondent submits that this claim arises out of the redeployment of 2007 and that issues in relation to the complainant’s pay were raised in 2011 and in relation to his seniority in 2013. It also submits that the complainant’s redeployment in 2007, which did not provide for the retention of his seniority, does not represent less favourable treatment. By letter of the 6th December 2006, the respondent informed the complainant of his return to work to the grade of post person in the Athlone Delivery Unit with effect from Monday, 15th January 2007, with a rate of pay at the post person grade of €513.96 per week. On the 30th May 2011, the respondent replied to correspondence sent on behalf of the complainant, refuting the allegations and reiterating the terms of his redeployment in 2007. In further replying correspondence of the 29th August 2013, the respondent states that the complainant was voluntarily redeployed to a postal operative role in Athlone Delivery Service Unit and that his seniority is determined by the date of his redeployment to this new office.

3.4 The HR Manager gave evidence. She said that the colleague identified by the complainant had worked in the Athlone mail centre and that a surplus situation had been created following a redesign of the centre. The respondent had sought expressions of interest and this colleague applied for this redeployment. The respondent had also made available early retirement and severance packages. The HR Manager acknowledged that this colleague had been on the transfer list and that she had initially been treated as a transfer and so would have lost her status. There were others in a similar position and they were to lose status following the transfer. The HR Manager said that the colleague transferred on the same day as the others, but her transfer arose because of the surplus. She would have remained in the mail centre had the surplus situation not arisen.

3.5 The HR Manager said that there was a distinction between transfer and redeployment. She stated that the respondent referred to medical redeployments, but the terms were interchangeable. It was the position that unless an employee had been deemed surplus under the collective agreement, any move resulted in a loss of seniority. She said that the complainant’s position was unique as employees were not redeployed and re-graded. In respect of the letter of the 10th February 2011 sent on behalf of the complainant, the HR Manager commented on the reference to “agreements” and said that LAMP was not relevant as the complainant had been re-graded.

3.6 In respect of publicity post, the HR Manager said that the amount of this post could vary depending on routes, but that this was a declining area nationally. There was payment of a flat rate per item of between 2 and 5 cents. She said that early delivery of publicity post should not happen. She also said that a lead reserve could cover routes for a prolonged period. She commented that there had been a higher number of redeployments in Athlone, leading to changes in seniority. In respect of the Monitoring Group, the HR Manager said that this had been appointed by the Labour Court to oversee implementation of the change agreement and its decisions were binding, She outlined that any temporary employee who was later made permanent could count seniority from their start date with the respondent.

3.7 In cross-examination, the contents of the letter from the colleague were put to the HR Manager; the HR Manager replied that this colleague had initially been transferred as a result of a vacancy. It was put to the HR Manager that this was similar to the complainant’s situation as he had also been transferred into a vacancy; the HR Manager agreed that there had been a vacancy but this would have been offered to the transfer list. She said that the colleague was not comparable as the respondent did not have to back-fill her role following her transfer. The contents of appendix 6 of the collective agreement were put to the HR Manager; the HR Manager acknowledged that following redeployment, a worker would retain their seniority. The contents of paragraph 3.4 of the Attendance Management Programme relating to redeployment at similar terms and conditions were put to the HR Manager; the HR Manager said that there was a difference in grade as similar work had not been available. The HR Manager accepted that seniority was important in the allocation of duties and the taking of annual leave. It was put to the complainant that following a medical redeployment, a worker would lose their seniority; the HR Manager said that the respondent was aware of its obligations to provide reasonable accommodation. It had met this obligation in assigning other roles and preserving seniority goes too far. It was put to the HR Manager that the complainant’s transfer had been due to ill-health; the HR Manager replied that the complainant had not suffered greater disadvantage than any other transferee and had incurred no loss. In respect of re-grading, the HR Manager said that generally a person redeployed for medical reasons would retain their grade. There had not been any discussions in relation to the collective agreement to protect seniority following a medical redeployment. There was a 12-noon duty available as an alternative to leave reserve. In re-examination, the HR Manager said that named union had never raised the issue of medical redeployment as part of the collective agreement and that there is a Joint Conciliation Council to address issues.

3.8 The Head of Employee Relations gave evidence. He said that LAMP had been established to manage attendance locally and to tackle poor attendance records. It did not address long-term absences. The AMP policy was devised and guidelines provided to local managers. The guidelines provide that staff “should” be redeployed at the same grade. He gave the example that post people in Dublin were able to become clerks. There were similar but not the same conditions, for example in relation to over-time. In respect of the complainant’s period of employment between 2007 and 2011, there had been a difference in basic pay of €35 per week. Over this period, the difference in pay was €6,000 and not the €19,000 claimed by the complainant. The night allowance was significant and not payable for day shifts. A transfer pursuant to the collective agreement would keep basic pay and seniority, but would lose the night allowance.

3.9 In cross-examination, it was put to the Head of Employee Relations that the pay for a postal sorter was €587.82 while that of a post person was €513.36, a difference of €74 per week. It was put to the Head of Employee Relations that the LAMP guidelines do not refer to Dublin; the Head of Employee Relations replied that this was written to accommodate Dublin post people. It allowed for reasonable accommodation but they lost their seniority on transferring between a post person role and a clerk role.

3.10 In closing comments, the respondent outlined that medical redeployment leads to lose of seniority and an employee would retain seniority if covered by the collective agreement. It was submitted that this issue was addressed by the collective agreement and the import of this claim was that the agreement should be amended to include medical redeployment.

4. Findings and reasoning:

4.1 The complainant is a longstanding employee of the respondent, having commenced his employment in 1999. At the time of the hearing, he worked in the role of post person in the Athlone Delivery Service Unit and is ranked 41 in seniority. The complainant had previously worked nights in the Athlone Mail Centre between 2002 and 2007. He became ill with depression and went on certified sick leave. In late 2006, the respondent Chief Medical Officer recommended that the complainant return to work and that he should not work nights. By letter of the 6th December 2006, the respondent informed the complainant of his return to work to the grade of post person with effect from Monday, 15th January 2007. This involved the redeployment of the complainant from the Mail Centre to the Delivery Service Unit and the letter refers to there being no alternative suitable duties in the Mail Centre. Since the redeployment, there has been protracted correspondence exchanged by the parties regarding the impact the redeployment has had on the complainant regarding his pay and his seniority. The issues were referred to the Monitoring Group established pursuant to the 2006 collective agreement, where the Group issued decisions relating to both pay and seniority. The matter was also referred to the Rights Commissioner service.

4.2 This complaint is made pursuant to the Employment Equality Acts. Section 77 of the Acts provides for 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].”

4.3 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.”

4.4 In assessing whether the complaint is within the statutory limitation period, the following are the relevant facts. The complainant was informed of the terms of redeployment on the 6th December 2006, effecting his pay and grade. In decisions issued on the 27th March and 18th April 2012, the Monitoring Group held that the complainant should be paid at the higher postal sorter rate and this should be backdated to the 1st November 2011. Following this outcome, the complainant raised the effect of the redeployment on his seniority, culminating in the unsuccessful reference to the Monitoring Group of the 30th April 2015. The complaint is dated the 12th May 2015.

4.5 The issues in this case arise from the terms of the complainant’s redeployment in early January 2007 and the consequences that have flowed from this. It is clear that the redeployment stemmed from the assessment made by the respondent Chief Medical Officer and other health professionals that the complainant should no longer work nights because of the detrimental impact this had on his mental health. The complainant, therefore, falls within the scope of ‘disability’ provided under the Employment Equality Acts.

4.6 There is a distinction to be made between the pay and seniority issues. The pay issue relates to the lower remuneration the complainant received following the 2007 redeployment to the post person grade. This was addressed by the Monitoring Group and backdated to the 1st November 2011. The complainant then raised with the Monitoring Group the shortfall in pay for the period before the 1st November 2011, for example in his letter of the 26th June 2012. Given that the Employment Equality complaint was made on the 12th May 2015, the remuneration element of the claim does not fall within the statutory limitation period provided in section 77. The reduction in pay came into effect in 2007 and the decision to limit the backdating to the 1st November 2011 was made on the 18th April 2012. Whether one takes the relevant date as the date to reduce pay or to limit the recovery of arrears, the complaint was clearly made outside the limitation period. The decisions to reduce pay and to limit the recoverable arrears are stand-alone decisions that cannot form part of a continuum of discrimination or a regime, rule, practice or principle to permit the complainant advance a claim made in 2015.

4.7 The complainant has been redeployed twice during his career with the respondent: once in 2002 when he retained seniority and a second time in 2007 when he did not. His seniority is now taken from the 15th January 2007. At the time of the 2007 redeployment, the complainant did not foresee the ongoing effect this would have on him. A significant number of colleagues became permanent and leap-frogged his position, even though they joined after 1999. Through restructuring, colleagues have been redeployed into the Delivery Service Unit and retained their seniority. This has had ongoing effects on the complainant, for example the allocation of annual leave and the 2015 process of reassigning routes, where the complainant is now a leave reserve, as opposed to having a particular route.

4.8 As relied on by the complainant, in Owusu v London Fire & Civil Defence Authority [1995] IRLR 574, the Employment Appeal Tribunal 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.”

4.9 The Owusu case related to upgrading and acting up over a period of time. In the instant case, the respondent allocates duties and approves annual leave on the basis of staff members’ seniority. The respondent calculates seniority according to when an employee commenced in their employment, but it can also be taken from a date of redeployment. As submitted by the complainant, I find that the application of seniority is a practice or rule that amounts to a continuing act, as opposed to an act with continuing consequences. The complainant was able to point to ongoing detrimental impacts arising from his placement on seniority, for example annual leave, publicity post and the 2015 loss of his route. It is fair to say that this loss has become more acute in later years as colleagues were redeployed into his area but who retained their seniority, and due to other changes in the respondent’s business.

4.10 As indicated by the EAT in Owusu, even where a complainant has established the existence of a practice, they must also show that it is discriminatory, or at least a prima facie case of discrimination arises. In this case, the respondent provided the complainant with an accommodation following the assessment made that he could not return from sick leave and work nights. He was offered a different job, at a different grade and a different rate of pay. He accepted this and later challenged the rate of pay and the effect this redeployment had on his seniority. The “Managers Guide to the Attendance Management Programme” provides at paragraph 3.4 that redeployment for medical reasons should carry similar terms and conditions of employment. Given the importance of seniority in the operation of this workplace, it follows that seniority forms part of what are “similar terms and conditions”. The respondent points to colleagues of the complainant who redeployed and who did not keep their seniority. While I acknowledge the wider industrial relations point raised by the respondent, those redeployments did not occur because of an employee’s disability. In this case, the complainant was assigned a new role because of his disability and because of the fact that he could not be accommodated with days in his existing post. He was treated in the same way as an employee voluntarily seeking redeployment as opposed to one deemed to work in a ‘surplus’ area. I note that the respondent states that the complainant filled a vacancy in 2007, but I also have regard to the fact that how the complainant was accommodated was a decision of the respondent’s. In these circumstances, I find that the complainant, as an employee with a disability and who was assigned to a role by the respondent, was treated differently to an employee, without a disability who is similarly assigned a role by the respondent, i.e. those deemed surplus. The complainant’s situation was not equivalent to an employee voluntarily seeking a transfer.

4.11 Taking the above findings together, I find that the complainant was treated differently because of his disability and suffered detriment as a result. As outlined, this treatment consisted of a continuing practice or rule so falls within the statutory limitation period. While I appreciate the wider industrial relations issues, the complainant should be returned to his seniority as per his date of commencement with the respondent and that this seniority should be retained following both redeployments. As of the date of the hearing, this placed him at 27 in the Athlone Delivery Service Unit. I find that the complainant is also entitled to recover compensation. I note that the respondent has acted in good faith and with regard to wider industrial relations issues. I note that the detriment incurred by the complainant has accentuated over time, with significant detriment arising in 2015. Taking these factors together, I make an award of €10,000 in compensation.

5. Decision:

5.1 I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79 of the Act, that the complainant was the subject of discriminatory treatment on grounds of disability.

5.2 In accordance with Section 82 of the Act, I order the respondent

(i) recognise the complainant’s seniority to the commencement of his employment with the respondent, and,

(ii) that it pay to the complainant €10,000 in compensation. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).

_______________________________

Kevin Baneham

Adjudication Officer / Equality Officer

1 March 2017