Complainant

Respondent

Anonymised Parties

Technical Writer

I.T. Co.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00014800-001

05/10/2017

The complainant works as a Technical Writer with the respondent. He commenced employment with the employer in Dec. 2014, initially as a Systems Engineer. The complainant has a disability, known as Carpal Tunnel Syndrome (C.T.S.). This condition causes pain, numbness and a burning or tingling sensation in the hand and fingers. C.T.S. has caused some fitness for work issues for the complainant in his employment. According to the complainant’s initial statement to the W.R.C., his complaint was based on unreasonable job changes, bullying and harassment, an appeal against a disciplinary sanction that was imposed upon him, victimisation and the failure of the respondent to find him a ‘suitable role’ within the organisation. At the outset of the W.R.C. hearing, the claimant clarified that his complaints were based upon: (i) victimisation and (ii) an inappropriate disciplinary action that was applied to him.

When asked (in the course of the adjudication hearing) to outline his case, the complainant made the following points:

-          He was bullied.

-          He was not facilitated at work with his disability.

-          He sought but was not provided with appropriate I.T. supports.

-          His job had been changed causing him injury.

-          The respondent was always reactive, but did not take appropriate preventative actions on his behalf.

-          He was unfairly disciplined.

-          He applied for internal posts but was rejected.

The respondent asserts that it has worked extensively with the complainant for the purpose of

providing assistance to him to facilitate his ongoing employment and to accommodate his

disability.

With regard to the disciplinary sanction, the respondent explains that adherence to standardised

procedures is very important in the industry. Failure to follow such procedures could lead to

client data loss and it is an important feature of the respondent’s ISO 20000-1 certification. The

complainant was spoken to by his manager on numerous dates regarding roles and responsibilities

and given direct instruction to stay within the tasks that had been allocated to him. Subsequently,

the complainant received a final written warning regarding two incidents (i.e. unauthorised

reconfiguration steps taken and entering a client folder and moving emails). At the disciplinary

hearing, the respondent was given the opportunity to respond to the allegations, however, he did not.

The complainant appealed the disciplinary sanction and an appeal hearing upheld the disciplinary

sanction.

With reference to the victimisation allegation, the respondent argued that it had:

·         arranged an ergonomic assessment and implemented its recommendations;

·         changed the complainant’s role to ensure that he was no longer required to

work from two locations;

·         re-allocated his workload so that he was assigned project type work that

could be achieved within the part time hours he needed to work in order to

recuperate;

·         agreed to purchase voice recording software and some other smaller

accessories (to reduce the length of time the complainant spends on a keyboard);

·         facilitated reduced hours for a period with no deduction to salary;

·         agreed to a permanent reduction in hours if required;

·         given verbal and email assurances that he could leave at any point throughout

the day if he didn’t feel well and

·         paid the complainant in excess of the provisions in its sick leave policy.

The Adjudication Officer reviewed the extensive volume of verbal and hard copy information submitted by both parties prior to and in the course of the hearing.

With regard to the allegation in respect of the (allegedly inappropriate) disciplinary sanction, the respondent has shown that it adhered to the key principles of natural justice (incl. those provided for in Statutory Instrument No. S.I. No. 146 of 2000 (Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000)). Furthermore, on the substantive issue associated with this sanction, the respondent notes that its concerns were brought to the complainant’s attention (by his manager) on 11 separate occasions prior to applying the aforementioned sanction. Whilst the complainant contests this number, in the course of the hearing he did acknowledge that the matter was brought to his attention ‘once or twice’.

With regard to the victimisation and associated (‘reasonable accommodation) allegation, Section 16(3)(b) of the Employment Equality Acts 1998 to 2015 imposes an obligation on employers to take ‘appropriate measures, where needed in a particular case, to enable a person who has a disability…to participate in employment…unless the measures would impose a disproportionate burden on the employer’. Furthermore, Section 16(4) of the Act outlines the meaning of appropriate measures as including the ‘adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision or training or integration resources’. With reference to same, the respondent has shown that it had:

·         arranged an ergonomic assessment and implemented its recommendations;

·         changed the complainant’s role to ensure that he was no longer required to

work from two locations;

·         re-allocated his workload so that he was assigned project type work that

could be achieved within the part time hours he needed to work in order to

recuperate;

·         agreed to purchase voice recording software and some other smaller

accessories (to reduce the length of time the complainant spends on a keyboard);

·         facilitated reduced hours for a period with no deduction to salary;

·         agreed to a permanent reduction in hours if required;

·         given verbal and email assurances that he could leave at any point throughout

the day if he didn’t feel well and

·         paid the complainant in excess of the provisions in its sick leave policy.  

Furthermore, in line with the tests set down in the Humphries v Westwood Fitness Club (2004)15 E.L.R. 296 case, the respondent produced evidence that it enabled an appropriate inquiry to ascertain all of the facts, considered the provision of special treatment\facilities and provided the complainant with the opportunity to participate as appropriate and to present relevant evidence.

With reference to the bullying allegation, evidence was presented at the hearing that the respondent’s Operations Director spoke with the claimant on the matter and he subsequently withdrew his complaint.

With regard to being turned down for posts that he had applied for, the respondent addressed each case\application and presented relevant factual evidence in respect of the complainant’s unsuitability.

The claim is not well founded and fails.

Disability  Discrimination