DEC-E2018-026

EMPLOYMENT EQUALITY ACTS 

DECISION NO. DEC-E2018-026

PARTIES:

An Employee

(Represented by Siobhan McLaughlin CIS)

-V-

An Employer

(Represented by Tony O Sullivan BL)

File Reference: et-157328-ee-15

Date of Issue: 3rd January, 2019

1. DISPUTE

This dispute concerns complaints of discrimination on the grounds of disability .In her complaint form which was received by the Equality Tribunal on the 22nd.June 2015 , the claimant submitted as follows :

“I have been subjected to discrimination on the grounds of my previous disability , namely mental health issues. I was on sick leave from the 12th.Dec. 2012 to the 1st.April 2014 and when I returned I was subjected to discrimination and victimisation .I was also not offered any of the same training opportunities as my colleagues when I returned to work. I was suspended from work on the 20th.April 2015 on grounds of capacity” In accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Emer O Shea , an Equality / Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts.

The complainant submitted in her complaint form that she was discriminated by reason of disability by discriminating against her in “ Giving me training “, “Conditions of Employment” and “Victimising me”. The claimant submitted the most recent date of discrimination was the 16th. April 2015.

2. SUMMARY OF THE COMPLAINANT’S SUBMISSIONS AND EVIDENCE

1. 2.1  The claimant was employed at the local Social Welfare Office in her home town and the respondent was registered as a sole trader of the office which serviced claimants in receipt of Job Seekers Benefit and Jobseekers Allowance for the local geographical area. The claimant initially worked there from 1980 – 1988 .A number of years later she returned to work intermittently for the respondent .She returned on a permanent basis to work as Clerical Officer in the office as and from June 2006.The claimant was certified unfit to work from the 12th.Dec. 2012 to the 31st.March 2014 having being diagnosed with severe depression. She was certified fit to return to normal duties as and from the 31st.March 2014 by her GP and her Consultant Psychiatrist.

2.2  When the claimant returned to work , it was submitted that the respondent discriminated against her by way of the following actions : a) she was advised by her Line Manager Ms.DH , on the day of her return that her usual desk was no longer available to her and had to sit at a spare desk – she had worked at the same desk on social welfare claims for a specific area since 2006; b) the following morning she was advised by the respondent that he felt that she was not fit to resume full time work- he suggested she return on a part time basis and claim Partial Capacity Benefit – the claimant felt she had no option but to agree; c)the claimant was not allowed resume her normal duties until the 6th.Jan. 2015 despite having submitted a fitness to return to work from her GP from March 2014- it was submitted that the respondent told the claimant on the 1st.April 2014 that she should not send the certificate to the Illness Benefit Section as he wanted her to claim Partial Capacity Benefit; d)while the claimant’s job had involved processing Social Welfare applications , the claimant was informed on the 2ndApril 2014 that her duties were changed to the tasks of opening post and stamping forms ;e) the spare desk to which the claimant was assigned was separated from the rest of the staff and when the other staff required a private meeting with a service user the claimant would have to leave her desk; it was submitted that other staff also used the desk for tea breaks and while the claimant sought to return to her original “empty” desk , this was denied; f)the claimant’s sisters were contacted by the respondent on the 26th.Nov. 2014 and asked whether they thought the claimant was fit to resume work – the respondent referred to the claimant’s mental health and expressed concern about her fitness to work; g)the claimant was not allowed resume normal duties until the 6th.Jan. 2015 when another staff member went on leave – she had been advised by the respondent on the 17th.Nov. 2014 that she was in his opinion still unfit and that it would be his decision as to when she would resume normal duties on a full time basis; h)It was submitted that when the applicant resumed work on the 31st.March 2014 she was not offered any support or training to assist her rehabilitation – she was not offered training on the new IT system ;i) the claimant was suspended from work for 4 weeks on the 16th.April 2015 when she was approached about errors in her work – the respondent advised that he would arrange for the claimant to attend an independent medical consultant for assessment ;j)it was submitted that the only reason the respondent was referring the claimant for a medical assessment was because of her previous mental health issues – at no stage had the respondent offered support mechanisms or identified any training deficits to assist the claimant – it was submitted that no other staff member had been the subject of suspension or a medical assessment; k)It was submitted that the respondent had never sought medical advices from the claimant’s GP or Psychiatrist between the 31st.March 2014 and the 16th.April 2015;l)the claimant was never informed that she was being monitored by her colleagues which it was argued amounted to discriminatory treatment – none of the claimant’s colleagues were subject to such monitoring – it was contended therefore that the claimant was prejudiced on the grounds of disability.

2.3 The claimant resigned from her employment on the 29th.May 2015 “ on the basis that she was discriminated against on the basis of her previous disability and that this represented a fundamental breach of trust and confidence”.

It was submitted that that the claimant’s evidence demonstrated that the respondent did not allow her resume her normal duties but rather assigned her to a spare desk to perform menial work. The claimant had no option but to agree to the Partial Capacity arrangement .The respondent had presented no evidence to support his assertion that the claimant had agreed to such an arrangement .It was submitted that the respondent had admitted in cross examination that he did not believe the claimant was fit to resume normal duties .It was contended that the respondent was prejudiced against the claimant because of her diagnosis of a mental illness and that this formed the basis of his opinion that she was unfit for normal duties notwithstanding the medical evidence to the contrary. It was submitted that the respondent had no written equality policies in place at the time of the claimant’s employment . Reference was made to confirmation from the claimant’s doctor that the claimant’s depression had been well treated and she had responded well to medication. It was submitted that the respondent’s representative’s contention that the claimant was not fit to resume work as she was on medication was misconceived given the large volume of people in receipt of prescribed medication for depression and carrying out high functioning work.

2.4  The respondent in his evidence had accepted that no other staff member had been assigned exclusively to postal work ; he had accepted that the claimant was a highly experienced Clerical Assistant with 16 years experience. The claimant on her return from sick leave was assigned to open and stamping post with no customer contact.

2.5  It was submitted that the claimant’s evidence that she was requested by the respondent to reduce her days and apply for Partial Capacity should be accepted as fact given the respondent’s unawareness if he instigated the conversation with the claimant and his acceptance that there was no record of the meeting. It was submitted that the GP completed the Partial Capacity form in the best interests of the claimant so that she could remain at work as the claimant had indicated that another woman was filling her position. It was submitted that the claimant was discriminated against and treated less favourably in being assigned postal duties and requested to undertake a 3 day week. In this regard , it was submitted that the claimant was treated less favourably than any other staff member who did not suffer from a disability.

2.6  It was submitted that the respondent had accepted that a woman returning from maternity leave was entitled to return to the same terms of employment and had stated in cross examination that the position of the claimant was different as she had a mental health issue. The respondent accepted under cross examination that the claimant had made it clear to her line manager that she intended to return to work full time. It was submitted that the claimant was discriminated against on her return to work as a result of her mental health condition and the provisions of DEC 2013 -046 Grainne Campbell v Bank of Ireland Private Banking was invoked in support of this contention. The Court had found that conditions of employment were not confined to pay and included levels of responsibility and customer contact.

2.7  It was submitted that the respondent had accepted that all other staff members were allowed to avail of the IT training . The claimant had been refused permission on the basis of the respondent’s perception that she was not fit to carry out normal duties.

2.8 The evidence of the claimant’s sisters was referenced and the respondent’s enquiries to them about the claimant’s mental health. It was submitted that the respondent had breached data protection legislation .  

2.9  It was submitted that the respondent had confirmed in his evidence that staff were aware of the claimant’s mental health condition while off sick – the respondent stated that other staff w2ere monitoring the claimant’s work- without her knowledge- because he was concerned about her fitness because of her mental health difficulties. It was submitted that the respondent had accepted under cross examination that he had not utilised any procedures to address these alleged concerns.

2.10  The respondent had acknowledged that he suspended that claimant without following any proper procedures. The respondent had argued that his actions did not represent suspension as he had placed the claimant on paid leave. The provisions of James Reilly and the Governor and Company of Bank of Ireland [2015]IEHC 241 were invoked in this regard and in particular the reference to a “ holding suspension which should not be taken lightly and only imposed after full consideration of the necessity for it pending a full investigation of the conduct in question”. The respondent had accepted under cross examination that he did not undertake any formal investigation of the alleged mistakes , that he was still awaiting the outcome of a complaint re Data Protection and that human errors often take place in a work environment. It was contended that the suspension was a disproportionate response and that the decision to refer the claimant for a medical exam was based on the respondent’s own prejudicial view that she was not fit for her duties because of a medical condition.

2.11  In her direct evidence the claimant set out a chronological account of her employment with the respondent. The claimant stated that on her return to work there was already someone in her place and she felt she had to cooperate with the partial disability proposal made by Mr.L on her second day back.Her manager Ms.DH told her not to send in a cert and that she would look into it.The manager gave the claimant a phone number for the processing office ; a form was sent out which she completed and returned. The claimant stated that she informed her line manager the week before she was due to return that her GP confirmed she was fit to return and that she was off her meds. The manager told her to obtain a fitness to return certificate.On her return the locum worker was at the cliamant’s hatch and the line manager told the claimant there was nowhere for her to sit. She arrived at work expecting to get back to the hatch. She was told by her line manager to ring Mr.L and ask where she would sit .He responded that there was a spare desk around the corner and he would sort it out later. The claimant said she felt isolated at this point and her replacement continued with hatch duties. When the claimant said to her line manager that she had forgotten to bring in the fitness cert from her GP , the line manager said not to bring in the cert “ til we see” .Mr.L then said to her that the partial incapacity arrangement would ease her back into work and she thought “ if that’s want you want me to do I will do it” .The claimant said she felt she wasn’t wanted back.

2.12  The claimant stated that when she was assigned to post duties only she asked her line manager for other work but she replied there was no other work. The claimant stated that she had never previously been assigned post and stamping duties solely. She stated that usually the most recent employee would do post and distribution but would also have other duties including hatch work. The claimant said she felt isolated and would have to move desk if someone else wanted to speak privately with a client.

2.13  The claimant stated that she asked to resume full time work in November 2014 ; she knew the partial incapacity grant was due to expire ; Mr.L said to her in his opinion the claimant was not fit for full time work and that it would be April 2015 before she was fit to resume full time. He asked her to resume full time work in January 2015 when another staff member was off ; at no point did he ask for or seek a medical opinion –“I would have supplied it if he had”.

2.14  The claimant stated that her colleague who had returned from maternity leave was not assigned post only duty. The claimant said she was not offered any training on her return to work .The claimant complained of not being included in the PPS training.

2.15  The claimant denied allegations of late attendance and stated if anything she was early. Occasionally there might have been a reason for a late arrival but it was never raised with her as an issue. The claimant conceded that she made a few mistakes and had issued post to an incorrect party – her manager told her that Mr.L said there might be repercussions and a client might want to take it further .The claimant asserted that no other complaints were made about her work – she was unaware of the incidents and “ horrified I was being monitored”. The claimant asserted the other 3 errors raised by the respondent at the meeting on the 16th.April 2015 were never previously raised with her. The claimant asserted that similar errors had been made by other staff and other staff shared the same difficulties with Casual Dockets

2.16  At the meeting on the 16th.April , the claimant was told to sit down and was advised by Mr.L she was being put off on paid leave and referred for a medical. She stated she did not open the letter until she left the meeting. The claimant stated that since her return from sick leave she had never been asked for medical evidence. She stated that she felt she wasn’t wanted ; she wondered why they did this and concluded it was because she had a mental health condition.

2.17  Under cross examination the claimant stated that she was off all of her medication. She acknowledged that she had tea with other staff and was challenged as to whether this was a sign of exclusion. When asked if the office would function without post she said no but it would not fall apart. She stated that her line manager floated the idea of partial incapacity. She asserted that her GP was surprised when she went to her to complete the partial incapacity form ; she stated she was in fear of loosing her job , that she wasn’t wanted ; that she had to ring Mr.L to find where she could sit and felt total animosity.\it was put to the claimant that her doctor lied to accommodate her.\the claimant said the only reason she wasn’t put on hatch work was because of her mental illness. She stated other people made mistakes in the office – she may have spotted them herself “ it’s the way an office works”. She stated she was treated differently because of prejudice about her illness. She was isolated doing menial tasks and was excluded from PPS training. When Mr.L met her on the 16th.April 2015 , she felt he was trying to get rid of her .It was put to her that she thought “they were out to get you”. The claimant stated that she would have been well aware if she was not coping – the letter was the last straw the claimant couldn’t see how she could go back to work when they were all spying on her.

2.18  Under re examination the claimant expected that at the meeting on the 16h.April 2015 , she would be asked how she was doing and that the respondent would wait to see how things worked out .The claimant stated that no other staff member had been on extended leave for as long as her. The claimant stated that her line manager was abrupt and displayed “ a lot of attitude”.

2.19  In her direct evidence the claimant’s sister recounted her meeting with Mr.L . She stated that she was aware at the time her sister was having problems with her line manager and was finding her unhelpful. Under cross examination , she stated the request for the meeting came out of the blue and she did not understand why Mr..L was seeking the meeting. She thought he might want to raise an issue about partial incapacity. She stated to him at the meeting that the issues with the claimant’s line manager needed to be dealt with and his response was Ms.H was in the service for the last 30 years and “ we will hardly change her now”. She stated that he would give no indication of how he would deal with the situation and when he proceeded to suspend the claimant , all support went out the window.

3. SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE 

3.1  The respondent denied that any of the acts complained of were acts of discrimination. It was submitted that the acts were out of time as they were isolated acts that took place more than 6 months prior to the making of the complaint. It was contended that no comparator had been set out and that no medical evidence had been produced to support the allegation that the claimant suffered from a disability.

3.2  It was submitted that the respondent had at all times respected and admired the claimant’s abilities and was eager to have her return to full health and to full time employment.

It was submitted that the “ absence of any medical imput prevented the respondent from obtaining expert advice on any reasonable accommodation which may have been appropriate or warranted and furthermore his defence of these allegations is prejudiced by its continued absence.”

3.3  It was contended that because of their long lasting relationship “ the staff and the respondent were able to spot that the complainant was not coping with her return to work and were at all times hopeful that their provision of support in a familiar environment would contribute to her making a full recovery” .It was submitted that it was “ best practise that any employee carrying responsibility for claims is available in the office on a full time basis.”

3.4  The respondent detailed the claimant’s role in the office prior to her taking sick leave and set out a time line of events leading to the claimant’s return to work. It was advanced that the claimant returned to work on the 1st.April 2014 “ seeking to be returned to full time working with allocation of her previous duties. She is allocated some duties and a position to work from”.

3.5  It was submitted that a discussion took place between the parties on the 15th.April 2014 and that it was agreed that the claimant would work a 3 day week for the time being. It was submitted that from the 25th.April 2014 – Nov. 2014 , the claimant works a 3 day week and “ shows signs of confusion in carrying out office tasks ,discusses tiredness and stress with the Respondent and these incidents are ascribed to her disability , and no issue is made of them by way of making reasonable accommodation”.The claimant resumed normal full time duties on the 6th.Jan. 2015.

3.6  It was submitted that from this time to the 14th.April the claimant works in the office full time , performing her normal duties , with varying degrees of error.” These lead to some frustration amongst other staff and to confirmation of the respondent’s belief that she is not coping well with the workplace and that this is caused by her illness”. He suggests a 4 week paid break and a medical assessment funded by the respondent.It was submitted that upon the claimant’s return to work , the respondent had no reason to believe that her illness was of a level of seriousness “ that would amount to a disability in the form of a Mental Health Disorder , or that she remained under Consultant Psychiatric Care”.The respondent accepted the claimant’s bona fides and there was no indication that she required reasonable accommodation .

3.7  It was submitted that the claimant’s normal duties are onerous and complex – they were not her duties but part of the respondent’s obligations under his contract from the contracting government dept. Had the respondent been satisfied that the claimant could perform these tasks on her return from sick leave , he would have been happy to allocate them to her shortly after her return.

3.8  The respondent took issue with the notice of return given by the claimant and submitted that the claimant could not reasonably have had an entitlement to perform her normal duties on the day of her return. It was contended that it would have been irresponsible and wrong to have risked errors by putting the claimant back to full time work in charge of a large number of claims without first being sure of the person’s ability to cope.

3.9  It was submitted that the claimant opted for 3 day work on her return and was therefore “ evidently either not capable or available to take up ‘ her normal duties’ or to work on a full time basis , from April 2014 – Dec. 2014”.The decision to not work full time rendered impossible a return to normal duties according to the respondent.

3.10  It was submitted that at the time the claimant resumed full time work , the respondent believed the claimant was beginning to cope better in the office.

3.11  The allegation that the claimant was treated differently on being assigned a different desk and menial tasks was denied. It was submitted that the desk was only minimally screened off and it was submitted that this was the most pleasant working position in the office. It was denied that the claimant asked to use other desks .It was submitted that there are no menial tasks in the office and that dealing with post was one of the most crucial tasks. It was contended that the assignment of less arduous tasks represented reasonable accommodation or appropriate measures in order to allow the claimant participate fully in the workplace.

3.12  It was submitted that all training for carrying out her allocated duties was provided to the claimant. The claimant was not sent on the training course at issue as it was expensive and difficult to obtain , that the claimant did not need this training , that the claimant was already struggling with her workload and it would have suggested to her that she was never going to return to normal work on a full time basis. It .was submitted that the claimant showed signs of confusion and aggression after being trained by her peers in scanning.

3.13  It was submitted that the respondent met the claimant’s sisters to express concern about her health to her next of kin……” in the circumstances of dealing with an employee with a mental health disorder this was a reasonable course for the respondent to pursue”.

3.14  It was contended that the claimant’s work was not monitored without her knowledge and that in being aware that staff were keeping an eye on her , acted as a support and reassurance that mistakes would be spotted .

3.15  It was submitted that the 4 weeks off was not a disciplinary sanction and was a proportionate and measured response with the stated objective of obtaining information and expert input.It was submitted that a medical assessment was sought as the claimant had not produced any medical evidence from which a need for reasonable accommodation could be deduced .” The respondent believed that the claimant was failing to engage credibly with her own mental health issues”.

3.16  It was submitted that the claimant’s decision to resign was entirely her own and “ was most likely caused by a final , but possibly misguided , realisation that she was not at that time capable of performing what she considered to be ‘her normal duties’.

3.17  In a closing submission – to which the claimant’s representative vehemently objected as it was submitted some 4 month after the agreed date for final submissions) it was contended that no medical evidence was adduced in a form amenable to cross examination and that had it been available , “ the area of paranoia could have been explored , either as a symptom of the claimant’s illness or as a side effect of her medication”.It was contended that the medical report that was submitted lacked objectivity and was of no probative value.

3.18  It was submitted that the claimant’s complaints about the respondent’s management of her return to work was sourced in the inadequate notice given by the claimant and the lack of consultation with Mr.L.It was submitted that the claimant’s medical report contradicted her evidence at the first hearing that she was off all treatment and medication.

3.19  It was contended that whoever came up with the idea of the partial incapacity arrangement was irrelevant as the salient facts were not disputed , the claimant went to her doctor about the scheme, “ her doctor was happy to sign the various forms , the complainant took advantage of the scheme , for 6 months or so she worked a 3 day week and did so without any complaint , formal or otherwise”.

3.20  It was submitted that the claimant had no basis for believing that Mr. L or other staff bore her ill will.It was submitted that the claimant had failed to make any complaint for almost a year and that the issues she had identified as minor bullying did not occur and there was no evidence advanced to link them to the claimant’s illness. It was submitted that the claimant had acknowledged that she was back doing hatch work in August/September and that consequently should not be considered as the time period was more than 6 months from the date of lodging the complaint.

3.21  It was contended that without prejudice to the forgoing , the refusal to allow the claimant carry her original work load was not unreasonable in the context of a busy office where it is more satisfactory that certain tasks are handled by full time employees , or it was reasonable accommodation to assist her in view of her health issues. As the only employee on a 3 day arrangement , it was not unreasonable that her workload would be different .

3.22  It was submitted that Mr.L was obliged to keep an eye on his employee whom he knew may require special treatment and that he had flagged in advance that he was going to do so and to keep things under review. The difficulties would not have arisen , it was contended if the claimant had been open about her level of illness on her return to work and had engaged meaningfully with Mr.L.It was argued that the complaint was based on fanciful evidence that she was forced on to a 3 day week “ together with descriptions of normal incidents from a workplace which are now being accorded a level of significance which is unwarranted”.

3.22  It was submitted that the respondent had obligations to protect the claimant from harm whilst in his employment and had only 3 sources of information about the claimant’s health – her final medical certificate, the enquiries he made off her sisters and his own observations of her demeanour and conduct .The meeting according to Mr.L’s evidence was initiated out of concern for the claimant’ well being and to prevent harm which he predicted might happen without some positive intervention. It was submitted that the meeting was discreet and occurred more than 6 months before the complaint was made.

3.23  It was submitted that Mr.L gave a reasonable explanation for not sending the claimant on the training course – the availability of spaces and their allocation across his employees and his correct perception that the claimant was already struggling and her situation was unlikely to improve with the addition of additional work.

3.24  It was contended that it was abundantly clear to Mr.L that the claimant was not coping in April 2015- the meeting was part of an enquiry required of an employer faced with an employee that requires some reasonable accommodation. It was disputed that this was a disciplinary meeting and it was argued that the instant case was distinguishable for the case relied upon by the claimant Bank of Ireland v OReilly [2015]IEHC 214.

3.25  It was submitted that the claimant’s GP had advised her to “ clearly define her limitations at work” notwithstanding the assertions by the claimant that she was at all times fully fit for the entire gambit of duties without limitation.

3.26  It was submitted that no adequate comparators were put forward by the claimant , that her evidence was vague and unreliable and that the evidence of her sisters and her GP lacked objectivity. It was advanced that the respondent had put forward cogent and credible evidence that his actions were based on a genuine well being for the claimant in the provision of reasonable accommodation.

3.27 In his direct evidence Mr.L stated that he had been employer for 42 years and had never previously been the subject of employments rights proceedings. He asserted that in order to ease the claimant back to work he retained the temporary replacement at the cost of €430 per week.>Ms. H researched the partial incapacity grant and we suggested the claimant look into it.He asserted that when he referred to paid time off for the claimant at the April 2015 meeting , there was no contemplation of disciplinary procedures and he was trying to provide the claimant with a comfort zone – he assumed the workload was too much for the claimant having been off work for 1.5 years .He stated that when he met the claimant’s sisters in Nov. 2014 they stated that the doctors were still experimenting with balancing medication.

3.28 Under cross examination , Mr.L spoke of his record as an employer ( 37 years without initiating disciplinary action) and was questioned if he had any policies in place and his understanding of the Employment Equality legislation. He indicated that this was about treating people differently/ unfairly to their disadvantage. He acknowledged that the claimant was a highly experienced clerical Officer and accepted that she had been open about her mental health. When the claimant told the line manager of her return to work date , he assumed she was returning on a full time basis. When the claimant asked where she would sit on her return to work , Mr.L stated he made sure she was comfortable. He assumed that because she was returning to work she would not be fit to resume her normal duties. When questioned about the alleged agreement with the claimant , Mr.L said the claimant said she could manage 3 days. Mr.L denied that assigning the claimant to do postal duties was menial. The respondent was asked was it not reasonable for the claimant to accept she had no option but to accept the partial incapacity arrangement in light of the failures to welcome her back and the lack of clarity about where she would sit Mr.L responded that the temporary replacement was doing the claimant’s work. Mr.L stated that postal duties had been shared amongst staff prior to the claimant’s return. Mr.L was asked about workers returning from maternity leave and replied they were entitled to return to the same conditions - he said the claimant returned on medication and the doctor had confirmed that.

3.28  Mr.L was asked why he decided to accommodate the claimant when she had not sought reasonable accommodation , he replied that he decided to welcome her back and let her find the level she was capable of. He asserted the claimant did not want to deal with telephones or deal with clients. He confirmed that he made the assumption that the claimant was not ready and able to cope.” I made a decision I would ease her back”.When asked if he had made an assumption on mental health grounds that the claimant was not fit to return on mental health grounds , Mr.L stated that it was nothing to do with mental health and was about the time she was off work. When asked if the claimant regularly sought to resume full time work , he initially replied yes and then clarified “ maybe not regularly”.

3.29  Mr.L stated there was no necessity for everybody to do training and the Deputy Manger had not done it- he was unable to clarify if the claimant was the only permanent staff member denied training.

3.30  It was put to Mr.L that he had been in breach of the Data Protection Act by contacting the claimant’s sisters -he responded that he thought it was the right thing to do and that his concerns about her health was what motivated the initiative.

3.31  Mr.L accepted that the claimant’s work was being monitored without her knowledge- he asserted the claimant could see nothing wrong , that as far as she was concerned everything was fine but her work did not reflect that. It was put to Mr.L that he had jumped the gun and effectively suspended the claimant without carrying out a proper investigation and affording the claimant her rights to representation. He responded that he had concerns about the pressure on the claimant , that he did not want to dent her confidence and that the “ next phase in the journey was to have her assessed”.

3.32  Mr.L stated when asked why he referred the claimant for a medical assessment when she made a few mistakes – he replied that he had an obligation and duty of care to her to make sure she was comfortable and could do the job- he was trying to establish the level of work she could manage and he needed some professional advice – it was put to him that in his letter placing the claimant off work , it was clear that his own opinion was that the claimant had ongoing mental health issues.He stated that “ we could see she was not reacting at 110%.

3.32  In re-examination Mr.L stated that he did not contemplate disciplinary action for the claimant’s errors.He stated he had no sanction in mind and was seeking a solution.He stated that it was most likely that he engaged the claimant about the partial incapacity arrangement –“ he wasn’t 100% sure it came out of a conversation – he was not sure if “ she asked or I said it”.He accepted he had no record or minutes of the exchange and did not have a staff handbook.

4. FINDINGS AND CONCLUSIONS

   4.1  The issue for my determination is whether the Complainant was subjected todiscrimination on the ground of disability during her employment with the Respondent, contrary to the Employment Equality Acts

   4.2  As per the cited case law, Section 85A of the Acts sets out the burden of proof which applies to all claims of discrimination and harassment and requires the Complainant to establish, in the first instance, facts from which discrimination or harassment may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.  

4.3  The claimant’s representative submitted a detailed report from the claimant’s GP dated the 8th.May 2018.into evidence.The respondent’s representative suggested that the report contained many issues that were not in the first hand knowledge of the GP and contained much heresay.The claimant’s representative asserted that the report demonstrated that the fact that the claimant was on medication did not mean the claimant was unfit for work.The respondents representative argued that the claimant returned on medication and was not coping properly.It was asserted by the respondent’s representative that nowhere in the report did it say that the claimant was discriminated against on foot of her disability.

4.4  The respondent’s representative did not seek to have the GP attend the hearing to give evidence or cross examine her notwithstanding the assertions contained in his closing submission about the alleged subjectivity of the medical report.

4.5  The report details the doctor’s diagnosis of depression and anxiety and the ensuing treatment plan.The GP states that she deemed the claimant fit to resume work on the 31st.March 2014 –“ It was left open at the consultation on the 31st.March 2014 that we would see how she would do on her return to work and keep her under constant review. She attended me frequently approximately on a monthly or two monthly basis after her return to work to monitor her progress”.The GP describes the claimant’s account to her of the difficulties she encountered on her return to work including her relationship with her line manager , the request from Mr. L to go on partial incapacity and her feelings of isolation and vulnerability. The GP stated that the claimant continued to remain on medication and responded well to same.The doctor stated that when she returned to see her in Sept. 2014 , the claimant believed her form had deteriorated around ongoing issues at work and that “she never felt supported in terms of coming to a compromise in relation to her new work environment and her well being but she continued to maintain a 3 day week and worked to the best of her ability”.The doctor’s entry on the claimant’s last consultation with her read” had been doing very well off Lustral things settled well psychologically other than work situation remains v difficult she feels she is being bullied and pushed out by manager and deputy manager she was issued with letter recently to take 4 wks off and asked to see a dr in dublin by her employer apparently there were accusations that she had made mistakes and other staff were watching her she siad the mistakes were ones that anyone could make on a normal day.” The GP stated that the stressors at work became insurmountable for her.

4.6  The claimant’s complaint was received by the Commission on the 22nd.June 2015.It was submitted that the claimant had been the subject of ongoing discriminatory treatment since her return to work on the 31st.March 2014 and the last occurrence of discriminatory treatment was the meeting of the 16th.April 2015 where the claimant was presented with the letter putting the claimant off work for a period of 4 weeks.In light of this chronology of a continuum of events , I am satisfied that the complaint of discriminatory treatment with respect to conditions of employment and access to training is in time.

4.7  No evidence has been advanced to support the allegation of victimisation for having made the complaint and accordingly I am not upholding this element of the complaint.

4.8  The respondent’s representative submitted that the claimant’s credibility was questionable in light of her assertion in the course of the first hearing that she was off medication when she resumed work at the end of March 2014.Under cross examination , Mr.L accepted that the claimant was always open about her mental health challenges and the claimant submitted a detailed medical report May 2018 into evidence which clarified the claimant’s medication history and consequently I do not accept that the contention by the respondent’s representative that the claimant’s credibility was undermined , has merit.

4.9  It is not disputed that the claimant resumed work on a partial incapacity basis.On the basis of Mr.L’s own evidence, I am satisfied that this arrangement arose from a suggestion fomulated by him in consultation with the line Manager .I am further satisfied that the claimant’s evidence that she felt she had no option but to accept this arrangement to be convincing.

4.10  I found the evidence of Mr.L with respect to the assignment of postal and stamping duties to the claimant to be contradictory and unconvincing and accept the contention that no other staff member was previously so assigned.

4.11  I found the evidence of Mr.L to be unconvincing in relation to his efforts to find reasonable accommodation for the claimant in light of his failure over the course of 12 months to seek medical clarification from the claimant’s GP or her consultant Psychiatrist or indeed to refer the claimant for an independent medical.Additionally , Mr.L ‘s admission that the claimant’s work performance was being surreptitiously monitored by the claimant’s colleagues undermines Mr.L’s protestations of concern to provide reasonable accommodation. It was not disputed that the claimant had not at any time sought reasonable accommodation on her return to work.No compelling evidence was advanced to demonstrate that the respondent sought to engage either with the claimant or her GP or Consultant Psychiatrist to explore reasonable accommodation options.

4.12  Mr.L was unable to clarify at the hearing or in his post hearing submission if the claimant was the only permanent staff member excluded from training on PSCs – accordingly I am accepting the claimant’s evidence in this regard.

4.13  While I acknowledge the respondent’s contention that the placing of the claimant on 4 weeks leave to allow for a medical assessment was motivated by concern for her well being , I find it was reasonable for the claimant to interpret this as a disciplinary measure given the contents of Mr..L’s letter to the claimant of the 16th.April in which a number of alleged performance deficits are outlined .

4.14  I am satisfied that the claimant’s illness constitutes a disability as defined under the Act and the provisions of EDA 0094         have already so determined.

4.15  The respondent did not have any Equality policies in place in the employment during the time at issue.

4.16  I am satisfied that the initial placing of the claimant on partial incapacity , her assignment to menial tasks , the surreptitious monitoring of her work and her placement on compulsory leave for a 4 week period fall within the definition of terms of employment in accordance with Section 8 of the Act and have concluded that these actions were directly related to the claimant’s disability.I am also satisfied that the denial of access to PSC training was related to the claimant’s disability .

5. DECISION

In light of the foregoing , I have concluded that the claimant has established facts from which discrimination may be inferred and I find on the balance of probabilities that the claimant was treated less favourably on her return to work than any of her other colleagues. I find the respondent has failed to rebut the inference of discriminatory treatment and accordingly I am upholding the complaints. I require the respondent to pay the claimant €25,000 compensation for discriminating against the claimant in relation to conditions of employment and €5,000 compensation for discriminating against the claimant in relation to training.

__________________ 

Emer O Shea

Equality / Adjudication Officer

3rd January, 2019