Complainant

Respondent

Anonymised Parties

A Healthcare worker

A Healthcare provider

Representatives

Mr. Dan Walshe, B.L., instructed by Sean Ormonde & Co. Solicitors

 -

Act

Complaint Reference Nos.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00007129-001

21/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00007129-002

21/09/2016

The complainant is an Audiologist working with the respondent for 27 years. She claims that she was discriminated, victimised and not provided with reasonable accommodation under the Employment Equality Acts 1998 -2015 by reason of her gender and disability and suffered penalisation for making a complaint under the Safety, Health and Welfare at Work Acts 2005.

The respondent refutes the allegations claimed.

The complainant withdrew the employment equality case under the gender ground during the course of the hearing.

The complainant is an Audiologist working with the respondent for 27 years. In July 2011, the complainant submitted a formal complaint of bullying against her line manager pursuant to the respondent’s Dignity at Work Policy. After a period of time out on sick leave and following some interaction between the complainant and the respondent an investigation proceeded in December 2011. The investigation report and findings were concluded in June 2012 and the final report issued to the parties in August 2012 where the complainant claims that it found principally in her favour.

The complainant claims that immediately after the delivery of the report her line manager, through her solicitor, wrote to the complainant and referred to a ‘memo’, that had been prepared by the complainant, and it warned against its possible circulation. The complainant stated that that memo had been removed from her drawer at work and this constitutes a further instance of bullying. There was an exchange of communications between the complainant and the respondent regarding a suitable alternative working arrangement as it was deemed unsuitable for the complainant to stay working with her line manager. All the while the complainant claims that she was left working with her line manager throughout August 2012 to February 2013.

The complainant claims that she was certified unfit to work on the grounds of work-related stress and remained out of work for three months in total until 7 May 2013. Within that time the complainant, through her solicitor, wrote to the respondent and had sought clarification over the subsequent issue with the events surrounding the memo and suitable work arrangements on her return to work when she was deemed fit to do so. The respondent in reply deemed the issue of the memo was not a work issue, and also reassured the complainant that it was looking at ways to ensure that she has a safe workplace on her return to work. On 22 March 2013, the respondent’s Occupational Health Consultant wrote to the respondent and supported her GPs certification that the underlying issues to her medical issues were work related stress. The complainant’s solicitor wrote to the respondent on 25 March 2013, outlining that it appeared that the respondent had “changed its approach” on the re-organisation of the complainant’s department, which was contrary with what was promised to her heretofore, and raised concerns about the complainant being placed back in direct line with the person she had successfully taken a bullying claim against.

The complainant claims that the respondent wrote back stating that it was appointing a named facilitator to assist the parties in getting a resolution to allow the parties work together in a fully functioning audiology department going forward. This letter also noted that the complainant had expressed a willingness to engage in an alternative dispute mechanism. The complainant’s solicitor wrote to the respondent on 19 April 2013 and said she was at a loss to understand why there was a ten-day delay in the facilitator getting in touch, that she was worried that the respondent’s approach would be at her expense. The letter also raised again the correspondence sent by the line-manager’s solicitor and the lack of action by the respondent. Finally, the complainant sought some clarity on the return to work arrangements, as she had hoped to return to work by 26 April 2013. The complainant presented evidence of correspondence with the respondent where it facilitated a “short/medium” solution to allow the complainant return to work in a “clerical/admin” role. The complainant claims that she returned to work on 7 May 2013 following a three-month absence.

Following on, there was an exchange of letters between the parties regarding the delay in returning the complainant to her area of speciality, audiology. She also expressed that other employees might form the view that with her absence and her subsequent reassignment to work in a different area, that she was the “guilty party”. The complainant presented two letters in evidence from the respondent dated 19 December 2013 and 14 January 2014 maintaining that the complainant would be returned to the audiology department once “internal arrangements have been resolved”.

On 28 March 2014, the complainant received a letter from the respondent inviting her to resume working as an Audiologist in a different location within the same grounds of the respondent’s complex. The complainant in reply outlined her desire to return to work in audiology but raised concerns about the proposal and sought further details. The complainant noted the respondent’s delay in its reply and when the reply did come it was again the complainant’s position that she was concerned what the perception would be that she was moved and, she was concerned with the contact she might have with her previous line manage. The complainant’s letter in response to this proposal said that it was unsatisfactory as both parties would still be working in audiology but it still gives a negative impression as she was the one moved.

The complainant maintains that the respondent’s subsequent reply was not sufficient to give her the necessary confirmations and assurances to allow her accept the new offer back in audiology. She again raised, by solicitor’s letter, the issue of the line manager’s solicitor’s correspondence and the removal of the memo from the complainant’s work drawer as connected to her employment. She also raised again other issues she has with the respondent. The complainant was replied to by letter dated 24 September 2014 setting out how the complainant’s reporting relationship was to operate so that she would not have to report to her previous line-manager working in the new audiology role.

The complainant’s letter in reply again highlights some of the difficulties that she maintains were restricting her from taking up the proposal. On 31 December 2014, the respondent again wrote to the complainant’s Solicitor reiterating the offer to the audiology role outside of her old workplace.

The complainant claims that in February 2016 she was moved from the temporary administrative role that she had filled since her return to work back in May 2013 as this work was been outsourced. She claims that she was moved to a job that in effect did not exist and there were days where she had nothing to do. In April 2016, the complainant maintains that she was moved again this time to take up a post as a receptionist, she claims that she felt devastated, this was not how she envisaged her career to turn out and she felt degraded and sanctioned. The complainant wrote to the respondent to raise these concerns and her letters were acknowledged but she claims that no attention was given to the substance of her letter. She claims that there has been no contact from her employer from that point until the date of the hearing where, in effect, she remains in limbo regarding her role and her career.

The complainant maintains that since she has remained away from audiology she is away from the promotional prospects that could arise, which would be significant financially as compared to the same prospects in her current clerical grade.

The complainant maintains that it was improper for the respondent to have required her to have worked alongside her line manager until she had to go out on sick leave in 2013. The promised reorganisation of the department and removal the line manager never materialised and the line manager remains in audiology while the complainant has been moved on. The respondent has failed to take any action regarding the removal of the memo from the complainant’s private space at work. She further claims that the respondent placed her in an “inferior role” on her return to work which was and continues to be demeaning and humiliating and constitutes inappropriate behaviour. The complainant also cites the respondent’s failure to reply to her solicitor’s letters throughout 2016 was inappropriate and failed to reasonably accommodate her return to work. The repeated moving of the complainant to inferior roles constitutes inappropriate treatment, harassment, victimisation as well as penalisation.

The complainant raised a number of legal authorities in relation to “Knowledge of a disability”- Connacht gold co-operative society v. A worker EDA 0822; in relation to “Direct Discrimination” – Case C – 79/99 Schorbus, Ntoko v. Citibank [2004] ELR 116; Dublin Corporation v. Gibney’s EE5/1986; Minaguchi v. Wineport Lakeshore Restaurant DEC -E2002-020; A Technology Company v. A Worker EDA0714; An Employee v. A Broadcasting Company [2012] ELR 88; An Employee (Mr O) v. An Employer (NO.2) [2005] ELR 132; in relation to “Reasonable Accommodation” – Cahill v. Dept. of Education and Science [2010] IEHC 227; Humphreys v. Westwood Fitness Club [2004] ELR 296, An Employee (Mr O) v. An Employer (NO.2) [2005] ELR 113; Kennedy v. Stresslite Tanks Limited Dec-E2009-078; Ms X v. A Nursing Home DEC-E2010-090; Mr. A v. A Government Department EDA061; A Government Department v. A Government worker ADE0516; An Employee v. A Telecommunications Company DEC-E2009-073, Marie Daly v Nano Nagle School [2015] IEHC 785. In relation to adverse treatment DEC-E2003-053 and DEC-E2016-037.

The complainant is seeking compensation for the effects of the discrimination, failure to provide reasonable accommodation, harassment, victimisation under the Employment Equality Acts 1998 -2015 and penalisation under the Safety, Health and Welfare at Work Acts 2005.

The respondent is a healthcare service provider and employer of healthcare workers and healthcare work professionals. The respondent claims that it employed the complainant as a junior Audiologist and accepts that the complainant made a complaint against her line manager a senior Audiologist under its Dignity at Work Policy and this was upheld in her favour. The respondent claims that the complaints process was carried out in accordance with its Dignity at Work Policy and following that process, a disciplinary process commenced against the line manager, accordingly.

The respondent claims that it never received a complaint of penalisation from the complainant under Section 28 of the Safety, Health & Welfare Work Act, 2005. It states that it is clear to it that an employee can only be successful in a penalisation claim under the 2005 Act if they can prove that they made a complaint to their employer in respect of a health and safety matter. The respondent claims that as the complainant did not make a complaint to her employer she cannot now seek redress under section 27 of the Act and accordingly, this complaint should be dismissed.

The respondent maintains that the claim by the complainant that she was discriminated by it because of her disability should likewise be dismissed. The respondent claims that the complainant has inferred that she was treated less favourable than someone without her disability. It claims that in order to establish direct discrimination the complainant has to establish in the first place that it treated her differently to an actual or hypothetical comparator in a comparable situation who is, has, or would be treated differently. The respondent maintains that the burden of proof rests with the complainant to cite an actual or hypothetical comparator, free from her disability that has been treated in a more favourable way to her and she has failed to do so. The respondent relied on the decision of the Labour Court under Dyflin Publications Ltd v. Spacsic where it referred to previous Labour Court decision in Cork City Council v. McCarthy that the complainant has to establish primary facts and that are of a sufficient significance to raise an inference of discrimination.

The respondent claims that the jurisprudence requires that the complainant is able to adduce evidence establishing a link between the alleged adverse treatment she claims she has suffered and the discriminatory ground. The respondent claims that the complainant has not established a link between the events surrounding her complaint under its Dignity at Work Policy and her disability. It also claims that none of the events that accorded after the investigation of her complaint occurred because of her disability as compared to a comparator who is free from her disability.

The respondent in its conclusion does not wish to counter or justify events following the Dignity at Work investigation. It stated that the complainant should be commended for her near 100% work attendance record since returning to work after the investigation back in 2013 while the matter was ongoing. The reasons for the sequence of events following the complainant’s successful complaint is down to the fact that the area where the complainant and her line manager worked is very specific with only a few workers, that the lack of options for re-engagement in this specific area is the one reason for such a delay and it has nothing to do with discriminatory treatment relating to her disability.

CA-00007129-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Law

In accordance with Section 27 of the Safety, Health and Welfare at Work Act 2005,

1. “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. 

2. without prejudice to the generality of subsection (1), penalisation includes—

(a)   suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b)   demotion or loss of opportunity for promotion,

(c)    transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d)   imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e)   coercion or intimidation. 

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a)      acting in compliance with the relevant statutory provisions,

(b)       performing any duty or exercising any right under the relevant statutory provisions,

(c)       making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d)       giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e)       being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f)        subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent, and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

 (4) […]

 (5) […]

 (6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

Conclusions

I note the findings and conclusions in a recommendation of the Labour Court in Determination No. HSD 102 when it sought to reflect on the jurisdiction of the Court in relation to Section 27 where is said,

“This Section is intended to protect employees who exercise any of the rights referred to at Subsection (3) from retaliatory conduct by their employer. In applying the provision the Court must be careful to recognise the distinction between a detriment which may be suffered by an employee as a result of an employer’s failure to fulfil a duty under the Act and a detriment amounting to “penalisation”. Therefore, the Court must be careful not to claim jurisdiction which it does not have by classifying as penalisation conduct, by act or omission, which is properly classified as a failure to fulfil a general duty imposed by the Act. Accordingly, the Court must now consider if the subject-matter of the within complaints, taken at their height, should properly be classified as penalisation as opposed to a contravention of the general health and safety imperatives of the Act. Subsection (1) of this Section defines penalisation in broad terms and can include a failure to act which results in a detriment to an employee in terms of his or her conditions of employment. Crucially, however, what is rendered unlawful by Section 27(3) is acts or omissions of the type referred to at Subsection (2) directed at an employee for having committed an act protected by that Subsection. Hence the decisive consideration is that of causation. It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of (see Determination No HSD095, Toni & Guy Blackrock Ltd and Paul O’Neill).”

The decision in Toni & Guy Blackrock Ltd and Paul O’Neill as referenced above is often quoted by the Labour Court as an authority under the Safety, Health and Welfare at Work Act 2005 it clearly sets the tests that should be applied to the circumstances on each case. It states that,

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

I am satisfied that the scope of what can be considered a protected act is quite broad. I note that there are a number of cases in the Labour Court that have address this point, see HSD161 - County Offaly Citizens Information Service LTD v. A worker and HSD 118 - Board of Management of St. David’s CBS Secondary School Artane v. Siobhan McVeigh, where a complaint was made on the basis of or relating to Bullying, Harassment and Sexual Harassment Policies, which qualifies as a protected act for a claim for penalisation to be considered under the Safety, Health and Welfare at Work Act 2005.

In the case before me for consideration, I am satisfied that the complainant has made a protected act and has sought to link her redeployment to clerical/administration roles away from audiology, in what she claims, as ‘inferior roles’ as the detriment to her since lodging the bullying complaint against her line manager as penalisation under the Act. In this case the protected act relied upon is the making of a complaint of bullying in 2011. The detriments complained of is the transfer of the complainant to these inferior roles, and possibly preventing her from attaining promotion to a higher grade within audiology.

The respondent maintains that it moved the complainant away from working with her line manager in the audiology department whom she had taken a bullying complaint against and due to operational difficulties has constraints on her redeployment back into working in audiology. It also maintains that it did offer her a post back in audiology away from her previous line manager and that she refused that option. I have given careful consideration to the submissions as well as the oral evidence. I find that there were inordinate delays in dealing with the issues and in attempting to find a complete resolution to the complainant’s satisfaction. However, I note the respondent has very limited scope to find a solution that allows it operate the audiology department’s ongoing work and to ensure that it keeps apart the complainant and her previous line manager. The respondent has offered the complainant to return to work in audiology, her chosen field, away from the possible interaction or influence of her previous line manager. The complainant chose to turn down the offer. In the meantime, the temporary administrative post she was working in since her return to work was a block of work that was outsourced and she was moved from that post because that post did not exist anymore. The second post she was moved into turned out be a non-runner, the evidence was that she had nothing to do in the role, and a number of staff seemed to be doing the same job and she raised this issue and was moved again. Finally, she deems that the move to a receptionist role is substantially different to what she would have expected, that she works close by to the audiology department and feels that she is someway being sanctioned.

It is clear that the respondent had a duty to provide the complainant with a workplace free from bullying. It is also clear it has responsibilities to all its employees and clients/customers and this is something it must carefully balance. I have been told by the respondent that the line manager had been sanctioned for her culpability in the bullying case raised against her. However, it is clear that the sanction deemed appropriate by the respondent did not include removing the line manager from her post. I am satisfied that it is not for me to determine the appropriate sanction it that case. Indeed, the investigation process does not appear to be at issue here and seems sound. I have read the investigation report and findings and I note that 3 of the 12 complaints made were upheld in the complainants favour and the other 9 were not. However, I note that no recommendation was given in how the respondent was to manage the situation post investigation and it rests with the respondent to manage that subsequently.

I am satisfied that the audiology department is only three people and for operational reasons the respondent has to consider its position and determine whether it can simply remove the Senior Audiologist. It would appear to me from the direct evidence taken at the hearing that the complainant basically wants her previous line manager removed from the audiology department and from the evidence adduced I am satisfied that would solve all her problems; where she could return to the audiology department and the perception, for any interested party looking-in, would surmise that the complainant is back working in audiology, the line manager would be gone and that she would be vindicated. However, I am not satisfied that the conundrum facing the respondent can be solved as simply as this, particularly considering the constraints and balancing all the needs including the personal and operational needs of the respondent. For a claim of penalisation under the Acts I need to be satisfied that, put simply, the respondent acted in a manner of bad faith because the complainant raised a complaint. I am not at all convinced that to be the situation.

Likewise, I am not convinced that the transfer in the complainant’s duties could be classed as penalisation within the meaning of the Act. I am satisfied that the three temporary transfers were warranted keeping in mind the main focus of the respondent is that the complainant and her line manager should be kept apart and the complainant continued to be protected from an environment of bullying or harassment. I note the first position was to facilitate the complainant’s return to work, on her same terms and conditions of employment albeit in a different post, and an exploration of the options of returning her to audiology. The second transfer was on foot of the outsourcing of a block of work. The third transfer to a receptionist post arose when the previous job did not materalise as the complainant had effectively nothing to do and she raised this internally. I am satisfied that none of the three posts are ideal given that the complainant wants to return to work in audiology but I am mindful that she was offered a possible compromise to return to work in audiology, away from her previous line manager and she refused to take up that offer. An offer that would appear at face value was made in good faith. Notwithstanding, I am not convinced, which I believe I need to be, that the transfer of duty derives from penalisation as provided for under Section 27 of the Act.

Finally, I do not accept the complainant’s position that her not working in audiology has prevented her from an opportunity of promotion to a higher grade within the audiology department. I am satisfied from the evidence provided that to do so she would have had to undertook and successfully passed a course of study over a period of time to be in a position to actually compete for any Senior Audiologist posts. I am satisfied that she has not to date actually enrolled in the necessary courses to gain the required qualifications for such a promotion.

CA-00007129-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

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 her. If she 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.

In the case of Melbury Developments v Arturs Valpetters [EDA0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”.

In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

Disability – Direct Discrimination

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability". The complainant claims that she was diagnosed with anxiety and depression related to work stress in March 2013 and this was again reaffirmed in her last medical report from her GP dated 28 March 2017. This, she claims, is her disability. This fact was not contested by the respondent, nor the fact that the complainant has a disability within the meaning of Section 2 of the Employment Equality Acts.

I also accept that a diagnosis of depression qualifies as a disability within the meaning of Section 2 of the Employment Equality Acts and I am satisfied that the respondent since March 2013 was at all times aware of the complainant’s disability. Accordingly, the issues for decision in this case are (1) whether she was discriminated against by the respondent in relation to her conditions of employment on the grounds of her disability and (2) whether as a person with a disability within the meaning of Section 2 of the Acts, the respondent has failed to provide her with reasonable accommodation contrary to Section 16(3) of the Acts.

In relation to direct discrimination the complainant has claimed that she was treated less favourably than another without a disability or a with a different disability. She claims that her comparator can be a hypothetical comparator or indeed her actual line manager who she claims was treated more favourably and continues to work in the audiology department when she in turn does not. The complainant refers to the Ntoko v. Citibank [2004] ELR 116; Corporation v. Gibney’s EE5/1986 and Minaguchi v. Wineport Lakeshore Restaurants DEC-E2002-020 in relation to the principal that the complainant must discharge the burden of proof showing that the difference in treatment is due to discrimination on one of the discriminatory grounds and once that is established the burden shifts to the respondent.  

Having carefully considered the written and oral evidence in relation to this aspect of the complaint I am satisfied that I have not been presented with any evidence, not to mind any convincing evidence, to support a claim of direct discrimination on the grounds of the complainant’s disability. Therefore, I am satisfied that there is no evidence of the complainant being treated less favourably by the respondent on the grounds of her disability. Accordingly, I find that the complainant has failed to establish a prima facie case of direct discriminatory treatment on the grounds of disability.

Reasonable Accommodation

The complainant claims that there is clear evidence to amount to a prima facie case of discrimination on the grounds of disability and that the respondent repeatedly failed to properly investigate what reasonable accommodation could be provided to the complainant to facilitate her return to work, which evidences further grounds that amounts to a prima facie case of discrimination.

The respondent claims that the complainant failed to establish a prima facie case and Dyflin Publication Ltd v. Spacsic establishes that the complainant must not just establish the primary facts upon which he or she relies but must satisfy that these are of sufficient significance to raise an inference of discrimination.

The other element of the complaint which I am required to consider relates to the claim that the respondent failed to provide the complainant with reasonable accommodation in terms of facilitating her return to work following a period of sick absence following the investigation into her bullying complaint against her line manager. Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the Section, of performing the duties for which they have been employed. However, this defence is tempered by the provisions of Section 16(3)(b) of the Acts which provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if s/he could do so with the provision of special measures or facilities, provided the provision of such measures would not impose a disproportionate burden on the employer.

As mentioned by the complainant in her submission in this case the concept of reasonable accommodation provided for in the Employment Equality legislation recognises that the inherent characteristic of disability can result in people with disabilities having difficulties in accessing or performing jobs in a conventional manner. In turn this creates barriers for people with disabilities and the purpose of the legislation is to place an obligation on employers to provide reasonable accommodation to open up and allow people with disabilities access and have equal opportunities to carry out those jobs.

The complainant has cited a number of the leading cases for my consideration in relation to the concept of reasonable accommodation and how it should be managed by the employer.

The complainant at subparagraph 29 of her own submission said that “in the case at hand, the respondent failed at all relevant times to: enquire at all into the complainant’s disability; consider possible methods of providing reasonable accommodation to the complainant or employing appropriate measures of reasonable accommodation in respect of the complainant disability. The respondent failed to get full details of the complainant’s treatments from her doctors; request further information from its own company doctor as to what methods of reasonable accommodation might be necessary […] whiles clearly the audiology department in which the complainant had been employed must have been in urgent need of resources”

It is clear that the complainant retuned to work in May 2013 and to facilitate that return to work she worked in a clerical/administrative role. There has been no discussion about any difficulties that she has or may have in carrying out the functions of this clerical/ administration role. There is no evidence to suggest that she requires or needs any specific help or measures to carry out this role. When there was discussion on the possibility of her returning to the role of an Audiologist there were no suggestions from the complainant or the respondent that reasonable accommodation would be necessary for her to perform the role. As mentioned above in Melbury Developments v Arturs Valpetters the complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”.

In the present case, the complainant had been absent from work on sick leave for a relatively short period of time. It was not disputed that she has a disability. However, it is not evident at all that she requires reasonable accommodation to return to work. I note that the complainant said that she was available to return to work and that she was medically fit to return to work without any medical stipulations attached. However, she has made it clear that she would prefer to return to work in audiology. The complainant contents that the respondent has failed to take reasonable measures to try and facilitate her return to work. I have carefully considered all the evidence in the context of the above matters. On balance, having regard to the evidence adduced, I am satisfied that no reasonable accommodation requirements have been identified for her return to work. I am satisfied that the complainant has not sought special measures to do the job. I see that she sought to return to work and agreed to return to work in a short/medium term role in a clerical/administrative post with her same terms and conditions until “internal arrangements [in audiology] have been sorted”. I note that reasonable attempts have been made to accommodate her in audiology at an alternative location away from her previous line manager but agreement could not be reached back in 2014.

Having heard the parties at the hearing it is clear that the complainant’s preference is to return to work in audiology and I expect that maybe her only preference is to return to the audiology department where her line manager is still engaged. The department is made up of three people. It will be impossible for the respondent to simply return the complainant back to this post without considerable creative thinking or re-engineering. I am satisfied that it just cannot pretend that it does not have a problem on its hands and return the complainant to work again with her previous line manager. I am satisfied that this process has taken an inordinate length of time to find a permanent solution, to the complainant’s liking, and the sense of frustration by all parties, in particular the complainant, is obvious and real. However, the case before me is in relation to an allegation of discrimination on the disability ground and a failure to provide reasonable accommodation. I find no facts to which discrimination may be inferred that are of sufficient significance so as to raise a presumption of discrimination on the disability ground or a failure to provide reasonable accommodation. I am satisfied that the crux of this case rests in how the respondent is managing the working arrangements of a number of its staff following a bullying investigation in a very small department. I am likewise satisfied that the treatment of the complainant by the respondent is no way linked to her disability. Nothing has been presented to me in evidence during the course of this investigation that supports that contention.

Having regard to the foregoing, I am satisfied for the reasons set out above, that the respondent has not failed to provide reasonable accommodation within the meaning of Section 16(3) of the Acts to the complainant as a person with a disability.

Victimisation

Victimisation is defined by Section 74(2) of the Act as follows: -

·         For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a) to (c).

In Determination EDA1017, Department of Defence v Barrett, this Court held that in order to make out a claim of victimisation under the Act it must be established that: -

a. The complainant had taken action of a type referred to at Section 74(2) of the Acts (a protected act),

b. The complainant was subjected to adverse treatment by the respondent, and,

c. The adverse treatment was in reaction to the protected action having been taken by the complainant.

In the case of the Public Appointments Service -v- Kevin Roddy [EDA1019]  the Labour Court held that: “To  be encompassed within the ambit of section 74(2)(b) “proceedings” must come  within the definition as defined by Section 2 under Interpretations where “proceedings” means—(a)  proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and (b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference, but does not include proceedings for an offence under this Act”

Under the Act the complainant must prove that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts referred to at Section 74(2) of the Acts.”

Therefore, in order to maintain a claim of victimisation within the meaning of the Employment Equality Acts it is necessary that a complainant demonstrate the connection between her actions in relation to defending entitlements under the Act and the adverse treatment complained of.

In relation to the victimisation claim, the complainant has said she reported that she was being discriminated against in relation to, the conditions of her employment and the failure of the respondent to provide her with reasonable accommodation. She claims that she has suffered adverse treatment as a result of reporting these incidents particularly by being “repeatedly moved to inferior roles and this constitutes victimisation”. I have noted that the complainant’s legal representative had engaged on her behalf and there was a continuous interaction between the complainant’s legal representative and the respondent for a substantial period in and around when the complainant returned to work and to assist me in considering the victimisation claim I have made a chronology of the main events in this case to map them against the complainant having “(a) sought redress under this Act; or, (b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment, or, (c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or (d) given notice of an intention to do anything within paragraphs (a) to (c).”

I note that;

(i)                  The complainant retuned to work on 7 May 2013 to work in an administrative role.

(ii)                The complainant was moved on 11 February 2016 to new role because her administrative role was being outsourced.

(iii)               The complainant was moved again on 11 April 2016 to a receptionist role as the previous role was not consider adequate by the complainant and not sufficient work.

(iv)               On 19 April 2016, the complainant’s solicitor wrote to respondent’s solicitor to say the complainant felt like she is being sanctioned.

(v)                On 21 September 2016, the complaint was lodged with the Workplace Relations Commission.

Following the order of events closely I am satisfied that the catalyst claimed here, which led to the alleged victimisation namely, the complaint lodged with the Workplace Relations Commission in September 2016 or indeed the solicitors letter in April 2016, postdate the movement of the complainant from her position within the respondent, and as set out in the Department of Defence v Barrett above, the protected act is the first stepping stone when evaluating victimisation in the three-step test. Followed by the alleged adverse treatment by the respondent and finally linking the adverse treatment, was in reaction to the protected action.

I am satisfied that it is clear that from a chronology of events that this was not the case in this situation. As I have noted above I am satisfied that these moves were warranted and essential at the time, and were designed to protect the complainant and not otherwise. Accordingly, I find that the respondent has not victimised the complainant in terms of section 74(2) of the Acts in terms of alleged adverse treatment.  

Harassment

In relation to the claim of harassment I note that the complainant claims that a number of incidents have occurred in the past and more recently that amount to harassment as defined by the Employment Equality Acts. To assist me in considering this element of the complaint I refer to publication from authors Bolger, Bruton, Kimber in their book Employment Equality Law 1st Ed. 2012 - Chapter 12 - Sexual Harassment and Harassment. Section 4. - Sexual Harassment and Harassment in Irish Law 12-36 where is states that,

“It is important to remember that the scope of harassment on a protected ground is an act which subjects a person to unwanted conduct on any of the protected discriminatory grounds, for example, sexual harassment, religious harassment or racial harassment. The Employment Equality Acts do not apply to a generalised bullying or harassment which has no link to the discriminatory grounds.”

And in addition, this was made clear in the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (S.I. No. 208 of 2012) which came into force on May 31, 2012.

Therefore, it is clear Section 14A(7)(i) of the Act defines “harassment” as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

To assist me to go through the various claims of harassment that were presented to me in the submissions and at the oral hearing, I have made a note of the different claims of harassment that are before me and I must of course be mindful in each situation that it is for the complainant to ensure that she must link the unwanted conduct with the discriminatory grounds and in this case the discriminatory grounds, namely her disability.

·         The respondent’s failure to adequately address her bullying complaints led to her inability to return to her role as an Audiologist. [2012]

·         The failure by the respondent to investigate the removal of the memo and the letter from the complainant’s line manager’s solicitor. [August 2012]

·         The respondent’s actions allowing the complainant’s aggressor to continue to bully her after she returned to work initially [January 2013].

·         The respondent’s failure to properly manage the complainant’s return to work [May 2013].

·         The respondent repeatedly moved the complainant to inferior role [last move, April 2016].

As noted above, I am satisfied that the respondent facilitated the complainant’s return to work in May 2013 and was aware of the complainant’s disability from March 2013. From strict application of the law the complainant must establish a prima facie case of harassment on the basis that there was unwanted conduct on any of the protected discriminatory grounds, namely on the disability ground.

I am satisfied that a number of the claims mentioned above are historical and many pre-date the diagnosis of the complainant’s disability. Notwithstanding no evidence has been presented to substantiate that they qualify as unwanted conduct on any of the protected discriminatory grounds, namely on the disability ground as proved for under the Acts.

In relation to the complainant’s claim of harassment on the protected discriminatory grounds of disability in relation to the two incidents that postdate her diagnosis of her disability I have found above that for the complainant the return to work arrangement has been highly frustrating as the complainant has not managed to secure what she wants, namely a return to work in audiology. Notwithstanding, the possibility of her returning to work in audiology was turned down in 2014. It is for the complainant to establish that this failure and the subsequent moves within the respondent constitute harassment and this is based on the protected discriminatory grounds, namely on the disability ground as proved for under the Acts and this has not been established from the evidence presented.

Having regard to the foregoing and the totality of the evidence adduced, I find that the complainant has failed to establish a prima facie case in relation to her claim of harassment. Accordingly, I find in the respondent’s favour.　

Having investigated the above complaint, I hereby make the following decision in accordance with Section 28 of the Safety, Health and Welfare at Work Act 2005,

The complainant has not established a prima facie case of penalisation contrary to Section 28 of the Safety, Health and Welfare at Work Act 2005.

I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that:　

(i)                  the complainant has failed to established a prima facie case of direct discrimination on grounds of disability in terms of Section 6(2) and contrary to Section 8 of those Acts.

(ii)                that the respondent did not discriminate against the complainant on grounds of disability in terms of Section 6(2) and contrary to Section 8 of those Acts in respect of a failure to provide her with reasonable accommodation for her disability within the meaning of Section 16 of the Acts.

(iii)               the respondent has not victimised the complainant in terms of Section 74(2) of the Acts.

(iv)               the complainant has failed to established a prima facie case of Harassment contrary to Section 14A of the Employment Equality Acts.　

　Accordingly, her complaint fails.　

Safety, Health and Welfare at Work Act 2005 - Employment Equality Acts 1998 -2015 – penalisation - reasonable accommodation – Victimisation – Harassment - failed to established a prima facie case.