EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2017-038
PARTIES
An Electrician
(Represented by William Henry, Solicitor)
v
A National Supplier
(Represented by Cliona Kimber, Barrister)
File reference: EE/157286-EE-15
Date of issue: 29th May 2017
1 CLAIM
1.1. The complainant alleges that he was treated in a discriminatory manner by the respondent on the grounds of disability contrary to Section 8 of the Employment Equality Acts. The complainant claims that the respondent discriminated against him in his conditions of employment by denying him promotion on the grounds of disability and in refusing him reasonable accommodation.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 21 June 2015. In accordance with his powers under the Acts the Director General of the Workplace Relations Commission delegated the complaint to me – Shay Henry, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Employment Equality Acts. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 22 March 2017. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
2. SUMMARY OF COMPLAINANT’S CASE
2.1 The complaint filed relates to two matters as follows:-
Discrimination on grounds of disability relating to the awarding of a promotional position, and secondly, the requirement of “reasonable accommodation” in circumstances where the complainant continues to suffer with a hip disability.
2.2 The complainant commenced employment with the respondent in June 1995 as a Network Technician and is now a qualified electrician. On 8 January 2013 he underwent a competitive process for the position of On Call Electrician and was awarded the post on a probationary basis for one year. In January 2014 he was made permanent in this role. The position is in addition to his normal daily role.
2.3 In August 2014 he was advised that he needed a hip replacement. He was further advised that if he minded his hip he might be able to delay surgery. At the same time a problem with his bladder and kidney were identified resulting in the removal of a kidney on 26 January 2015 and absence on sick leave since that date.
2.4 For the majority of his employment with the respondent he had been assigned as part of a two man crew with a man who did not climb, meaning that the complainant had to do all of the climbing. In August 2014, following the identification of the hip problem, the complainant informed the respondent that he could not continue to work with a non-climbing man as this was putting a strain on his hip. He raised the matter on a number of occasions with his supervisor but was not taken seriously. He supplied a letter from his GP in support of his request but nothing changed. As a result he raised the issue of climbing with a non-climber at an emergency briefing.
2.5 On 23 December 2014 promotional grades were allocated and the complainant was not awarded one. The system of awarding such grades was based on a performance appraisal by the local supervisor in the first instance. On 20 January 2015 he met with his supervisor and the Area Manager and outlined his concerns at not achieving the upgrade. His supervisor informed him that he had not received the upgrade due to; sick leave, leadership and drive and because he had not completed a particular type of work.
2.6 Sick leave was not one of the criteria set out on the performance appraisal. The majority of the complainant’s sick leave was certified and in the two year period to which the appraisal related, the complainant had a total of 4 days uncertified sick leave. Secondly, leadership and drive could not be an issue where the complainant consistently worked with non-climbers. The complainant had never been asked to undertake the particular work referred during the feedback meeting.
2.7 The 7 employees who were interviewed for the position in which the complainant was successful in January 2013 were also candidates for the promotional grade in December 2014. However, the complainant was ranked 6th on this occasion. The only thing that had changed was his health.
2.8 The complainant enjoyed a good relationship with his supervisor until August 2014 when he raised the issue of his illness.
3. SUMMARY OF RESPONDENT’S CASE
3.1 Preliminary Objections
Reasonable accommodation was not ticked as a cause of action in the complaint form submitted on 21st June 2015. Neither was it set out in the document received by the Equality Tribunal on 23rd June 2015. The first mention of reasonable accommodation is in the submission of 7th January 2016. The accommodation referred to relates to assignment with a second climber and it is clear from that submission that he has been assigned with a second climber since December 2014. The complainant is therefore out of time in making a complaint regarding reasonable accommodation.
Reasonable accommodation is not a standalone cause of action but rather the complaint has to be that the person was denied the appropriate accommodation to enable them to do their job and was thereby prevented from working. This is not the case in this instance.
3.2 Substantive Case.
3.2.1 The respondent denies that allegation of discrimination and states that the portfolio review was conducted on an objective basis. The complainant is a loyal and hardworking employee but on this occasion other employees were deemed more suitable and to have performed more highly.
3.2.2 In 2014 an agreement was reached with unions that a review of the network technician portfolio would take place and a limited number of promotional grades would be awarded. Throughout the region there were 89 technicians eligible for the promotion and therefore it was a very competitive process.
3.2.3 The Area Manager in each area was provided with assessment criteria and a list of eligible staff in his/her area. These were further subdivided for each local supervisor. The line manager supervisor was required to perform the initial scoring and ranking having regard to the assessment criteria, in preparation for the discussion with the Area Manager. The Area Manager then met with and challenged the supervisors to support their assessments. In the case of the complainant the supervisor ranked others more highly.
3.2.4 The on call position to which the complainant was appointed two years earlier required different competencies and skills.
3.2.5 At the feedback meeting in January 2015 the complainant did not state that he had been treated less favourably on the grounds of his health difficulties the previous autumn. His supervisor informed him that he had not received the upgrade due to; sick leave, leadership and drive and because he had not completed a particular type of work.
3.2.6 The burden of proof is on the complainant to prove a prima facie case and the fact of disability is not of itself sufficient.
4 CONCLUSIONS – Preliminary issue.
4.1 In response to the jurisdictional issue the complainant argues that;
· He continues to suffer from his hip. It’s an ongoing issue
· He remains an employee of the respondent
· It is not in either parties interests for this matter not to be determined in circumstances where Statute does not prevent the re-filing of this aspect of the complaint, if not addressed at this time
· By the matter not being addressed, it simply allows for an ongoing difficult work environment
· There was always two issues of complaint; it is clear that two boxes in the complaint form were ticked, one being “conditions of employment” and the second being “other”. The applicant had intended for both matters to be addressed. In the complaint form, in setting out details of complaint, it states “There is insufficient space on this form for my complaint”. The summary of matters subsequently submitted refers to both matters of complaint as set out.
· If this matter is not addressed at this time it will merely cause further costs to be unnecessarily incurred for both parties.
4.2 While the Equality Officer/Adjudication officer has some limited discretion in relation to the expansion of a claim it is a requirement that the respondent must be given a reasonable opportunity to deal with complaints and the procedures must comply with natural justice. In this instance, I note that, while the complainant did tick two boxes in the complaint form, the box indicating ‘conditions of employment’ and the box indicating ‘other’, he did not tick the box on the form indicating ‘Failing to give me reasonable accommodation for a disability’. I do not think it is reasonable to expect a respondent in these circumstances to assume that a complaint made under ‘other’ could relate to a different specific category for which provision is clearly made on the complaint form. Secondly, in his subsequent written submission of 23 June 2015, no reference is made to failure to provide reasonable accommodation. The first mention of this issue is in a submission in January 2016 and therefore the complaint is out of time. In relation to the remaining points made by the complainant I note that the particular accommodation requested, a second climber, has been put in place. In light of the above I conclude that I do not have jurisdiction to deal with this part of the complaint.
5 CONCLUSIONS – Substantive issues
5.1 The substantive issue for decision by me is as follows: whether or not the respondent discriminated against the complainant on the grounds of disability, in terms of section 6(2) of the Employment Equality Acts . In reaching my decision, I have taken into account all of the submissions, written and oral, made to me by the parties.
5.2 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 in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.3 The essence of the complainant’s claim is as follows; that he had previously been successful in competition for promotion and that on the second occasion he was not; a number of the people whom he had beaten in competition on the first occasion finished ahead of him on the second occasion; the only thing that had changed was that he had informed the respondent of his disability and his need for a second climber. For the respondent’s part, evidence was given that the information supplied by the complainant in relation to his disability played no part in the appraisal used for the promotion. Whether sick leave was considered is largely irrelevant as both parties agree that there was no sick leave relating to the disability before the competition for promotion.
5.4 The respondent has pointed out that there were two different roles involved in the two competitions and different sets of competencies. In the workplace promotions are almost invariably competitive in nature insofar as there are often many candidates for few positions. That is the case in this instance. It is inevitable therefore that there will be many disappointed people. The role of the selection process is to discriminate between candidates and, provided the criteria and process used do not contravene the law, there should be no outside interference. In this instance it was open to the respondent to establish different criteria/competencies for the two different roles. The failure of the supervisor to keep any records in relation to scoring he applied to each candidate under the various criteria is of concern and I would recommend that this practice be put in place. However, the mere notification by the complainant of a disability to the respondent is not sufficient to meet the criteria for establishing a prima facie case of discrimination in this instance.
5.5 Accordingly, I find that the complainant has failed to establish a prima facie case of harassment within the meaning of the Acts.
6 DECISION
6.1. I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that the complainant has failed to establish a prima facie case of discrimination.
_____________
Shay Henry
Adjudication/Equality Officer