EMPLOYMENT EQUALITY ACTS 1998-2015

Decision DEC-E2018-022

PARTIES

Mr Allen Hogan (represented by Gerard Cullen Solicitors)

 and

Vistamed Ltd. (represented by Callan Tansey Solicitors)

File Reference: EE/2013/133

Date of Issue: 6th November 2018

 Table of Contents

1. Claim..                                                                            3
2. Summary of the Complainant’s Written Submission.     3
3. Summary of the Respondent’s Written Submission.      4
4. Conclusions of the Equality Officer                                4
5. Decision.                                                                         8

Keywords: disability – direct discrimination – indirect discrimination – reasonable accommodation – victimisation.

1.   Claim

• 1. The case concerns a claim by Mr Allen Hogan that VistaMed Ltd discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2015, in terms of conditions of employment and failure to provide reasonable accommodation. The complainant further complains of having been victimised contrary to the provision of S. 74(2) of the Acts.
• 2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 15 March 2013. A submission was received from the complainant on 2 October 2013. A submission was received from the respondent on 22 November 2013. On 29 May 2018, in accordance with her powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 12 September 2018. Additional evidence was requested from both parties at the hearing of the complaint and received from the respondent on [DATE] and from the complainant on 3 November 2018.

2.   Summary of the Complainant’s Written Submission

• 1. The complainant’s submission is not very clear. He states that he suffered an accident at work on 22 October 2012, but also states that he notified the respondent of the existence of a disability prior to that date, and that he was refused reasonable accommodation. The complainant’s submission then goes on at length about the respondent’s alleged refusal to allow an engineering inspection for health and safety purposes. The complainant does not identify his disability, either prior or after his accident, and does not identify what reasonable accommodation within the meaning of the Acts he sought, given that health and safety measures within the meaning of the relevant statute are not the same as reasonable accommodation measures within the meaning of S. 16 of the Employment Equality Acts.
• 2. With regard to his complaint that he was discriminated against in his terms and conditions of employment, the complainant does not identify a comparator with no disability or a different disability as required by S. 6(1) of the Acts.
• 3. The complainant does not specify any particulars as to his victimisation complaint.

3.   Summary of the Respondent’s Written Submission

• 1. The respondent denies discriminating the complainant as alleged or at all. It submits that with respect to an alleged injury at work in 2011, the complainant did not require time off work and was not certified as unfit for work. The respondent notes that this alleged incident is also subject to personal injury proceedings in the superior courts.
• 2. As regards the accident which the complainant suffered in 2012, the respondent states that the complainant was facilitated with lighter duties on a part-time basis and first returned to full hours and eventually to full duties. The respondent is therefore of the view that it did provide reasonable accommodation to the complainant.
• 3. The respondent denies that the complainant was discriminated against in his terms and conditions of employment.

4.   Conclusions of the Equality Officer

• 1. The issue for decision in this case is whether the complainant was discriminated against, and victimised, within the meaning of the Acts.
• 2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
• 3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
• 4. The complainant had brought a previous complaint to the Equality Tribunal on the ground of, inter alia, disability, which he had filed on 7 August 2012. The Equality Officer found in her decision dated 27th March 2013 (Hogan v. VistaMed Ltd, DEC-E2013-025) that the complainant had not discharged the burden of proof that an injury he sustained at work in 2011 resulted in a disability within the meaning of the Acts. Based on this earlier decision, the respondent argued that the matter as to whether the complainant was disabled was res judicata, and that I should follow my colleague’s decision. The complainant’s solicitor, on the other hand, attempted tirelessly to argue that the earlier injury should be included in my considerations, effectively, that my colleague’s decision should be re-opened.
• 5. I am satisfied that I cannot re-open my colleague’s decision, which, as a matter of fact, remains under appeal to the Labour Court where it is subject to a lengthy adjournment process. I therefore cannot reconsider whether the complainant’s injury from June 2011 resulted in a disability within the meaning of the Acts.
• 6. The complainant sustained another injury in a workplace accident on 22 October 2012. The complainant’s work included feeding raw materials into the respondent’s production facilities, which entailed lifting 25kg bags of materials to shoulder height, then turning and emptying the bag into a container. On the day in question, the complainant sustained a lower back injury. The complainant submitted medical reports from his treating physiotherapist in respect of the long-term outcome from this incident. The reports also reference the outcome of an MRI scan, which the complainant underwent in 2014, which showed degenerative disc problems with a potential for what the report terms “nerve root impingement”. The complainant has struggled on and off with lower back pain for years now.
• 7. Based on the reports provided, I am satisfied that the complainant can be considered a person with a disability pursuant to S. 2(c) of the Employment Equality Acts, in that his lower back pain causes the complainant intermittent physical malfunction. I further accept that these problems have arisen for the complainant on a reasonably continuous basis since his accident on 22 October 2012, even though his degenerative disc problems only came to light more than two years later. Accordingly, I am satisfied that the complainant has standing to bring the within complaint of disability discrimination under the Employment Equality Acts.
• 8. In terms of the complainant’s accident, the respondent was made immediately aware of it. I am satisfied from the evidence of both parties that the complainant was sent to the company’s GP in a taxi following the incident, and that afterwards, he saw the company GP regularly and attended physiotherapy which was payed for by the respondent.   By the time the complainant returned to work in January 2013, the respondent had invested in a so-called “vacuum lifter”, which obviated the need to lift the heavy bags. The purchase of the vacuum lifter represented a significant investment for the respondent company and cost it €8,700. In addition, a secure platform for the operator of the machine to be at waist-height rather than shoulder-height with the container the bags were emptied into was also installed at that time.
• 9. The complainant himself was facilitated with a phased return to work and worked three half days and two full days per week. He had two helpers to assist him with challenging physical tasks as needed. Given that the complainant’s back problems kept flaring up, the complainant was subsequently facilitated with a role as a Process Assurance Operator, which he could carry out sitting down and which did not involve any strenuous physical labour. Although it was originally mentioned to the complainant that his wages might be reduced to reflect the lower wage of that role, but this proposal was dropped and the complainant remained “red-circled” on his former warehouse role wage.
• 10. Some aspects of the accommodation provided needed ongoing negotiations between the parties and some did not work out flawlessly in an immediate fashion, but from the totality of the evidence, I am satisfied that the respondent handled the fallout of the complainant’s accident, even at a point in time where it was not clear that it would lead to the complainant’s disablement, in an exemplary fashion. Apart from the cost of the vacuum lifter machinery, which the respondent submitted post-hearing and which was not challenged by the complainant, the complainant confirmed all of the above accommodations in cross-examination. Accordingly, I find that the respondent did more than enough to discharge any possible obligations which may have arisen pursuant to S. 16(3) of the Acts. The complainant’s complaint for lack for reasonable accommodation can impossibly succeed under these circumstances.
• 11. The complainant also complained of both direct and indirect discrimination. He adduced no evidence whatsoever of direct discrimination, i.e. his terms and conditions of employment were in any way less favourable than those of his co-workers without a disability. In fact, given that he was red-circled with his warehouse wage in his process assurance operator role, he was arguably treated more favourably than his co-workers.
• 12. Likewise, in terms of the complainant’s complaint of indirect discrimination, there was no evidence adduced of any apparently neutral provision or work practice which put the complainant at a particular disadvantage. Even though the complainant had an accident, and experienced disablement, as a result of lifting heavy bags in a complicated movement, he never returned to this duty after his accident, and neither did anyone else, since the respondent invested significantly in technical aids to make the practice obsolete. It cannot therefore be said that the complainant was put at a particular disadvantage within the meaning of S. 31 of the Acts, by being asked to lift heavy bags as a person with a disability.
• 13. The complainant’s complaint of discrimination on the ground of disability, either direct or indirect, must therefore also fail.
• 14. The complainant’s complaint of victimisation turned out to be related to a complaint he had raised with the Health and Safety Authority prior to his previous complaint with the Equality Tribunal. Given that the Safety, Health and Welfare at Work Act 2005 contains its own penalisation protections and that the Employment Equality Acts victimisation protections only relate to complaints under those Acts, I find that I have no jurisdiction to investigate this matter. No evidence of victimisation within the meaning of the Employment Equality Acts was adduced by the complainant. This part of his complaint must therefore also fail.

5.   Decision

• 1. This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
• 2. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Employment Equality Acts 1998-2015, that VistaMed Ltd did not discriminate against the complainant, either directly or indirectly, did not refuse the complainant reasonable accommodation pursuant to S. 16(3) of the Acts, and did not victimise him pursuant to S. 74(2) of the Acts.

 ______________________

Stephen Bonnlander

Equality Officer/Adjudication Officer

6 November 2018