Complainant

Respondent

Anonymised Parties

A Postman

A Postal Service Provider

Representatives

Limerick Council of Trade Unions

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00019779-001

14/06/2018

The Complainant commenced his employment with the Respondent on 29th January 2007 as a postman.

The Complainant claims that he was victimised and discriminated against by way of an occupational pension by the Respondent. He is seeking compensation in that regard.

The Complainant submits that he is employed by the Respondent as a postal operative in a full time permanent capacity. He commenced his employment on 29th January 2007.

The Complainant submits that he is being discriminated against by the Respondent as a result of receiving less favourable treatment in respect of pension entitlements by being denied access to the benefits of the Respondent’s Occupational Pension Scheme.  

The Complainant submits that he has a disability as defined by section 2 of the Employment Equality Acts, 1998. This disability has been medically confirmed by the Department of Social Protection who have awarded the Complainant a State invalidity pension. The Complainant claims that the Respondent was on notice that the Complainant suffers with a disability and he has been discriminated against in respect of this disability as a result of the Respondent’s actions. The Compliant submits that the Respondent has denied him access to the provisions of the Occupational Pension Scheme. The Complainant submits that the actions of the Respondent constitute victimisation under the Act.

In his direct evidence, the Complainant stated that he suffered from back pain some four years ago. He commenced sick leave on 1st July 2015 and remained out sick until he applied for and was awarded invalidity pension on 4th May 2017. The Complainant confirmed that he was paid sick pay in accordance with the Respondent’s policy.

The Complainant claimed that he contacted the Respondent’s HR Manager, Mr C some time after 4th May 2017 to inquire about the retirement on ill health grounds. Mr C was not in the office at the time and his voicemail instructed the Complainant to call a designated person in his absence. The Complainant confirmed that he did not contact the person named. The Complainant submits that on 21st May 2018 he wrote to the CEO requesting the matter to be resolved, to no avail.

In respect of his claim of victimisation, the Complainant said that he was on continuous “split duty” since 2007. He argued that other staff members with less service were rostered on day duty before him. He claimed that he fought for it and, eventually, got the day duty towards the end of 2014 / beginning of 2015. The Complainant also said that there was a disciplinary matter back in 2012 which was subsequently referred to the Rights Commissioner service and as a result, he felt that individuals were “set against him”. He felt that he is entitled to a pension but he is not getting it as a result of that. The Complainant stated that the Respondent “is set against him” and when he notified the Respondent of the invalidity pension the Respondent kept sending him to the Medical Officer. The Complainant argues that the Medical Officer is ”not qualified enough” to make the decision as to whether or not he is fit for work.

The Complainant said that on 27th September 2018 he wrote to the Medical Officer disagreeing with his opinion.

The Respondent submits that the Complainant is employed as a postal operative. He commenced his employment with the Respondent on 29th January 2007. The Complainant has been absent on sick leave since 1st July 2015. The Respondent submits that the Complainant is not being refused access to the benefits of the Company Occupational Pension Scheme.

The Respondent submits that it manages absences from work on the basis of illness through Attendance Support and Management Process (ASMP). Entry is at status 5 and may escalate up to status 1 in cases of persistent or continual absence. The Respondent submits that in the past few years, the Complainant’s absence was managed through the ASMP as follows and meetings were arranged with the Complainant at the following dates:

17th August 2015 – the Complainant did not attend.

26th January 2016 – the Complainant attended, escalated to status 3.

17th May 2016 – the Complainant attended, escalated to status 2.

7th September 2016- the Complainant attended, left at status 2.

The Respondent submits that on 28th April 2016 the Complainant was referred to the Chief Medical Officer (CMO) who is a specialist in occupational medicine for assessment of fitness. The CMO assessment received on 8th June 2016 stated that there was “reasonable function of his back and there are no signs of concerns”… “Indicated his desire to leave the Company…”

The Respondent submits that its HR Manager, Mr C met with the Complainant on 24th June 2016 to discuss the CMO’s assessment and a record of the meeting was forwarded to the Complainant on 2nd July 2016. The HR Manager advised the Complainant that suitable sedentary work had been identified for him. The HR Manager met with the Complainant again on 21st September 2018 and advised of the availability of sedentary work for initial period of 6 weeks during which his fitness for the full range of duties would be assessed by the Occupational Health Specialist.

The Respondent submits that the Complainant raised questions on a previous disciplinary process at that meeting and asked, “when was he going to be dismissed”. The HR Manager assured the Complainant that was not the case.

The HR Manager wrote to the Complainant on 27th September 2016 detailing the above and allowed the Complainant to submit any medical information he would have for the Company to consider. Nothing further was received by the CMO leaving the CMO’s memo of 8th June 2016 as the basis with which to evaluate the Complainant’s case. In the same letter the Complainant was given until 10th October 2016 to outline in detail the concerns he had regarding management in his workplace. No details were received in this regard.

The HR Manager again wrote to the Complainant on 25th October 2016 summarising the Respondent’s position which was that he was fit to resume on sedentary duties and that he should resume on 1st November 2016.

The Respondent submits that the Complainant did not resume and wrote to the HR Manager on 27th October 2016 regarding the medical reports which were not forthcoming and stating that he was awaiting reports from his own doctors Dr H and Dr F. He also indicated an appointment in a named Mental Day Care Centre. He referenced concerns regarding management in his workplace and previous conversations and reports.

The Respondent submits that the HR Manager wrote to the Complainant on 15th February 2017 and advised that no further medical information had been received by the Respondent and stating that the Complainant had not provided any detail regarding his concerns in relation to management in his workplace. The Complainant was advised that before proceeding further, the HR Manager wished to meet with him on 22nd February 2017.

The HR Manager wrote to the Complainant on 28th March 2017 and advised that he was to resume work in an enquiry office on 3rd April 2017 on a phased return to work basis (working 4 hours per day). A phased plan was included with the letter. The Complainant failed to resume.

The HR Manager wrote to the Complainant again on 6th April 2017 advising him to resume on 10th April 2017 or the matter would be addressed with him through the Company’s disciplinary procedure. The Complainant did not resume.

The HR Manager wrote to the Complainant again on 13th April 2017 and advised that he should resume on 18th April 2017 and if he did not resume consideration would be given to the withdrawal of sick pay in his case. The Complainant did not resume.

The HR Manager wrote to the Complainant on 20th April 2017 and advised him that he was to resume on Monday 24h April 2017 and that if he did not resume that disciplinary procedures would be initiated in his case and these would involve a withdrawal of sick pay from that date. The Complainant did not resume.

On 24th April 2017 the HR Manager wrote to the Complainant to arrange to meet on 4th May 2017. The Complainant rang on 27th April 2018 and informed that there was no change in his condition and declined to meet.

The HR Manager wrote to the Complainant on 28th April 2017 and advised that sick pay had been withdrawn effective from Monday 24th April 2017 and that if the Complainant did not resume by Monday 8th May 2017 disciplinary procedures wold be initiated. The Complainant did not resume.

On 9th May 2017, the HR Manager wrote to the Complainant and advised that the case would be forwarded to the company HQ to deal with the disciplinary aspect.

The Respondent submits that it is aware of its commitments to its employees in addressing the issues of disability. However, the Respondent is not depriving the Complainant of his employment or employment rights. The Complainant remains a member of the Respondent’s Occupational Pension Scheme and will avail of it when circumstances allow. The Respondent submits that it supports and employs numerous employees with disabilities. The Respondent strives to ensure that it can support or make change to work or workplace to ensure continuing employment. The Respondent submits that from its occupational medical perspective, it has a role for the Complainant. The Complainant appears to hold the view that an invalidity pension must be considered for termination on grounds of ill health. That is not the case.

The Respondent submits that it has been extremely patient in its dealings with the Complainant. It requested details of his personal concerns regarding management but received nothing by way of input or evidence.

The Respondent submits that many employees in receipt of certain disability payments may be allowed to work. However, if an employer strives to provide appropriate work to the employee, especially an employee with an illness / injury which would be considered a disability, the Company has not deprived the Complainant of a pension. It merely addressed the relevant illness /disability in an appropriate manner. The Complainant retains his right to pension once he has fulfilled the normal criteria.

Finally, the Respondent submits that it was attempting to pay normal full salary pay to the Complainant for his attendance at work notwithstanding that this work was specifically intended to account for his capacity for work, as advised by the OHS.

The matter I have to consider is whether the Complainant was discriminated against by the Respondent on the disability ground in relation to the operation of the Respondent’s Occupational Pension Scheme and whether he was victimised by the Respondent.

The Law

The Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act, 2004 provides at Section 66:

“1) For the purposes of this Part, discrimination shall be taken to occur where—

(a) 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 mentioned in subsection (2) (in this Part referred to as the ‘discriminatory grounds’) …

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Part) are—…

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Part referred to as ‘the disability ground’),..”

Section 65 of the Acts stipulates as follows: ‘disability’ means—

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

‘occupational benefit scheme’ means—… (b) in relation to employed persons, any occupational pension scheme or arrangement which is comprised in one or more instruments or agreements and which provides, or is capable of providing, occupational benefits in relation to employed persons in any description of employment within the State, but does not include— (i) any insurance contract made by or on behalf of an employed person to which the employer is not a party, or(ii) any scheme in so far as benefits are financed by contributions paid by the members on a voluntary basis;

‘occupational benefits’ means benefits (other than remuneration to which sections 19 and 29 of the Employment Equality Act 1998 apply), in the form of pensions, payable in cash or in kind in respect of—

(a) termination of service,

(b) retirement, old age or death,

(c) interruptions of service by reason of sickness or invalidity,

(d) accidents, injuries or diseases arising out of or in the course of a person's employment,

(e) unemployment, or

(f) expenses incurred in connection with children or other dependants, and, in the case of a member who is an employee, includes any other benefit corresponding to a benefit provided by virtue of the Social Welfare Acts, the Maternity Protection Act 1994 or the Health Acts 1947 to 2001 which is payable to or in respect of the member as a consequence of his employment;…”

Section 70 of the Act states: "(1) Subject to this Part, the principle of equal pension treatment is that there shall be no discrimination on any of the discriminatory grounds (including, subject to section 68(2), indirect discrimination) in respect of any rule of a scheme."

Section 65(3) defines victimisation as follows: “For the purposes of this Part, victimisation occurs where the dismissal or other adverse treatment of an employee by his employer occurs as a reaction to—

(a) the employee notifying the Director General of the Workplace Relations Commission or the Board of an alleged breach of this Part,

(b) a complaint of a breach of the principle of equal pension treatment made by the employee to the employer,

(c) any proceedings by a complainant,

(d) an employee having represented or otherwise supported a complainant,

(e) the work of an employee having been compared with that of another employee for any of the purposes of this Part,

(f) an employee having been a witness in any proceedings under this Part,

(g) an employee having opposed by lawful means an act which is unlawful under this Part, or

(h) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

There was no dispute that the Complainant is a member of the Respondent’s Occupational Pension Scheme, and early retirement on the ground of ill-health is a benefit linked to the scheme. The Complainant claims that the Respondent has subjected him to discrimination on the grounds of disability in relation to the decision not to apply the ill health retirement. It was not in dispute that the Complainant suffers from ankylosing spondylitis / lumbar spondylosis. Based on the evidence provided, I am satisfied that the complainant can be considered a person with a disability pursuant to Section 66 of the Act.

In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 76 of the Acts. According to the wording of the section, it is up to the Complainant to establish facts “from which it may be reasonably inferred that there has been a breach of the principle of equal pension treatment in relation to” him, before a prima facie case is established and the burden of proof shifts to the Respondent.

Pursuant to Section 66(1) the Complainant must show that he was treated less favourably than another person is, has been or would be treated in a comparable situation on the disability ground.

In that regard, Section 67 defines “Categories of persons to whom this Part applies

(1) For the purposes of this Part, ‘X’ and ‘Y’ represent 2 persons who differ as follows:…

(g) in relation to the disability ground, X is a person with a disability and Y is not, or vice versa, or X and Y are persons with different disabilities;…”

In order for the Complainant to succeed in establishing a prima facie case of discrimination in the instant case, it must be established that there are at least some facts supporting a claim of less favourable treatment in a comparator situation and that there is a nexus between the alleged treatment and the protected ground of disability.

The Complainant adduced no evidence of a comparator. He claimed that he successfully applied to the Department of Employment Affairs and Social Protection for the Invalidity Pension and therefore, on the basis of the Department’s decision, the Respondent is required to approve his early retirement on ill-health grounds.

The Respondent acknowledged that the Occupational Pension Scheme provides for early ill-health retirement. However, it was argued that in order to avail of same the Complainant must be, in the opinion of a doctor with the appropriate occupational health qualifications, prevented from following any employment with the Respondent. The Respondent submitted that the CMO came to the conclusion that the Complainant was fit to resume sedentary work.

Having regard to the evidence adduced, I am satisfied that the reason why the Complainant did not qualify for the ill-health retirement was directly attributable to the fact that he was assessed fit to resume work on sedentary duties by the Chief Medical Officer (report dated 8th June 2016) and that this was not in any way attributable to his disability. The Respondent has provided such sedentary work on a phased basis for the Complainant. The Complainant refused to return to work as he felt that he was mentally and physically unfit for work, including sedentary work. The Complainant was given ample opportunity to submit any medical information to the CMO in support of his claim. No such evidence had been furnished by the Complainant and the Complainant referred his claim to the WRC on 14th June 2018.

In the circumstances, I am satisfied that the Complainant has failed to provide any facts to support his assertions of less favourable treatment by the Respondent on the grounds of disability in the circumstances of the present case. Accordingly, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of disability in relation to the operation of the Respondent’s Occupational Pension Scheme.

In relation to the Complainant’s claim that he was victimised, the Complainant must prove that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts. Therefore, in order to maintain a claim of victimisation within the meaning of the Acts it is necessary that the Complainant demonstrates the connection between his actions in relation to defending entitlements under the Act and the adverse treatment complained of.

The definition of victimisation contained in the Section 65(3) contains essentially three ingredients. It requires that: -

·         1. The Complainant had taken action of a type referred to in Section 65(3) of the Acts (a protected act),

·         2. The Complainant was subjected to adverse treatment by the Respondent and, 3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

To be encompassed within the ambit of section 65(3) “proceedings” must come within the definition as per Section 65(1)

‘proceedings’ means—

(a) proceedings before the person, body or court dealing with a request or reference under this Part 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 Part;

In the instant case, the Complainant submitted that he felt that the Respondent was “set against him”. In that regard, the Complainant contended that he referred a claim to the Rights Commissioner service in or around 2012 and he felt that “individuals set against him” as a result. The Complainant argued that this was demonstrated by the fact that he was continuously rostered to work “split duty” between 2007 and the end of 2014/ beginning of 2015. He also claimed that the refusal of his retirement on ill health grounds was a result of his claim. He claimed that, once notified of his Invalidity Pension the Respondent should award him ill health retirement rather than sending him to the Medical Officer who is, in the Complainant’s opinion, not sufficiently qualified to assess his fitness to work.  

I note that, as per the Complainant’s own evidence, the claim referred by the Complainant to the Rights Commissioner service was not a claim under the Pensions Acts. Therefore, the Complainant’s actions in 2012 did not relate to defending his entitlements under the Acts.   The Complainant was not relying on proceedings under “this Part”, to substantiate his claim.

Therefore, in my view the facts as presented do not come within the ambit of a protected act and consequently do not come within the intendment of the Act.

Having regard to the evidence available to me, I find that the Complainant has not established any facts which give rise to the presumption of victimisation on the part of the Respondent.

Having investigated the above complaint, I hereby make the following decision in accordance with section 81E of the Pensions Acts:

The Respondent did not discriminate against the Complainant on the disability ground pursuant to Section 66(1)(a) and 66(2)(g) and in terms of Section 70 of the Acts in relation to the operation of the Occupational Pension Scheme.

The Respondent did not victimise the Complainant pursuant to Section 65(3) of the Acts.

Pensions Acts – discrimination – victimisation – disability- ill health retirement