ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018924
Parties:
| Complainant | Respondent |
Anonymised Parties | A Clerical Officer
| A Public Service Employer |
Representatives | Aoife Mc Mahon B.L. instructed by the Irish Human Rights and Equality Commission | MP Guinness B.L. instructed by the Chief State Solicitor's Office |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00024459-001 | 24/12/2018 |
Date of Adjudication Hearing: 22/10/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Summary of Complainant’s Case:
The complainant commenced his employment as a clerical officer with the respondent in September 2018.
During the probation period he was subject to a number of reviews and following the first one in December 2018 concerns were raised about his output. He suffers from OCD and in January 2018 he made the respondent aware of this for the first time, and immediately after that had a short period of stress related leave.
He had not wanted the respondent to know about his disability up to that point.
On his return he met the respondent ‘s Disability Liaison Officer (DLO) and following this a twenty to thirty percentage reduction of the workload calculated by reference to the average of that carried out by his peers was agreed, although no expert advice was sought on the matter.
His response to this was monitored by a performance improvement plan (PIP) and this was reviewed on a weekly basis by a manager.
The complainant submits that the use of a PIP represented an act of less favourable treatment and hence discrimination as failure to successfully complete a PIP can lead to disciplinary action under the respondent’s policy. Monitoring compliance with the reasonable accommodation provisions should not have led in any way into the disciplinary process.
In any event the complainant submits that the accommodation was inadequate as it was based on an erroneous assessment of the components of his work and did not take sufficient account of the volume of telephone calls he handled.
There were other inadequacies too in the response to the need to provide reasonable accommodation. He had sought a quieter workplace, less frequent meetings and training of his co-workers in issues related to his disability.
As already noted no medical or other expert opinion was sought and the general response required a more patient, tolerant and respectful approach.
This all had an adverse effect on the complainant and following each of the probation reviews.
The complainant also alleged a number of incidents of bullying and harassment and submissions were made in relation to specific individuals. |
Summary of Respondent’s Case:
At the commencement of the complainant’s employment on September 18th, 2017 he did not make his disability known to his employer. On November 1st he had a performance review meeting as part of his probation monitoring at which he was told that his work rate was not at the required standard and was given an opportunity to discuss his performance but again did not identify his disability as a contributory factor. A second meeting took place on December 18th and on this occasion the complainant said that he needed more training and he was told that this would be provided. Again, there was no reference to his disability. At a meeting on January 16th the complainant told his managers that he was being bullied. None of his co-workers would have been aware of the complainant having a medical issue. On January 23rd, 2018 the complainant’s managers were advised by the HR department that the complainant had disclosed for the first time that he had a disability; Obsessive Compulsive Disorder and a meeting was arranged to discuss it. The complainant, who had a daily commute from Limerick to Dublin said he would like to transfer to a work location closer to home as he found the commute tiring. He also said that the demands of his work aggravated his condition. No medical evidence was provided in relation to his disability nor was any accommodation sought at this stage. A follow up meeting took place on January 29th with the respondent’s Disability Liaison Officer (DLO) at which he referred to the daily commute and told the DLO that he had applied for the position in Dublin in anticipation of being able to transfer to a location closer to his home. His direct managers were advised by HR not to communicate information about the complainant’s disability to his co-workers. At this point he made an allegation of bullying against a colleague. Increments due to be paid were deferred on the basis of his poor performance. Only on February 5th did the complainant raise the matter of reasonable accommodation but did not make any formal request for such accommodation. He was seen by the respondent’s Chief Medical; Officer who declared him fit for work. On February 15th a meeting took place at which it was agreed on the suggestion of the complainant that his workload would be reduced by 20% for an initial period of one month during which his performance would be monitored and that a performance improvement plan process would be designed to support the complainant. Meetings took place on a regular basis with the complainant and he responded extremely well to them; thanking his manager. Following the meeting on February 21st other duties were removed from the complainant. However, his performance did not improve. The description of the monitoring process as a Performance Improvement Plan (PIP) was not intended to convey that he was within a formal PIP process that could result in disciplinary proceedings, but was a bespoke system designed to support the complainant. No objection was ever raised by the complainant or his representative to the process. He made another complaint against a co-worker on March 12th. At a meeting with his manager on March 14th the complainant said he was happy with his work and raised no other concerns. His six-month review took place on March 20th and this raised concerns about the complainant’s interaction with co-workers. At the respondent’s request he attended the Occupational Health Service on March 21st which confirmed that he was fit to engage with the performance improvement process. He was referred to a consultant psychiatrist on April 3rd in the course of which the complainant stated that his condition was causing a problem in meeting his work targets. He also told the consultant that his GP had advised letting his co-workers know about his condition but he did not do so. At a meeting on April 20th the complainant raised for the first time the fact that the performance review meetings were themselves unhelpful and contributing to his stress levels. On May 4th the complainant told his manager that he was coping and that he understood the need for the meetings despite the fact that they caused him stress. His nine-month probation review took place in June 2018. It was critical of his performance and questioned his suitability for the role. (The complainant was critical of these conclusions). Also, complaints had been received from his co-workers that they found the complainant difficult to work with. They were still not aware of his disability. On July 19th he was advised that his performance was being reviewed and that if he did not pass the review his probation would not be extended. In fact, it was extended having regard to his medical condition. Then on August 27th he was transferred close to his home and successfully completed his probation on March 1st, 2019. The respondent contends that the pressure of the daily commute was a significant contributory factor in the complainant’s condition. Extensive legal submissions were made on the law relating to disability which must be something that hinders full and effective participation in professional life and which has a ‘substantial adverse impact’. The respondent submits that it is not sufficient for a complainant to merely allege a medical condition and no supporting evidence has ever been offered of the complainant’s disability. In any event the respondent did provide reasonable accommodation to the complainant and the nature of this was agreed with him. and has not discriminated against him. The performance improvement process was not part of the disciplinary process and the complainant has sought to ignore the fact that he was a probationary employee. There is no evidence of harassment of the complainant and his co-workers were not aware of his disability at his request. |
Findings and Conclusions:
The complainant alleges the following breaches as evidence of discrimination on the grounds of his disability. There were three grounds advanced to support this alleged discrimination. The failure to provide reasonable accommodation. The use of a PIP which is a part of the disciplinary framework. The manner in which the monitoring process was conducted representing harassment. There was a fourth area of complaint comprising individual complaints against named co-workers; one being the office Manager and three others being co-workers. The complaint against the office manager related to the pressure she placed on the complainant to improve his performance and meet targets. The complaints against the co-workers related to an incident on August 2nd, 2018. None of these were the subject of a formal complaint at the time. It is difficult to avoid feeling sympathy for the complainant and expressing criticism of his handling of the situation at the same time. He made a very substantial contribution to the events of which he now complains by his failure to initially declare his disability and to provide medical evidence of it and then to insist that his co-workers should not be made aware of it. In relation to the reasonable accommodation there was much argument at the hearing about how this was calculated, and the fact that some elements of the complainant’s role (telephone calls) were excluded. It emerged that these excluded elements were a very small part of the complainant’s role, and in any event much more difficult to quantify than the email traffic where the reduction was agreed. There was no detriment to the complainant in their exclusion. The adjustment in the complainant’s expected outputs was agreed by him at a meeting at which he was represented by a trade union official. There was no evidence that he raised an objection at the time and quite a bit of evidence that he professed himself satisfied with the arrangement. There was criticism of the fact that other suggestions made by the complainant were ignored but I accept the respondent’s evidence that some of these (for a separate office, for example) were impractical. A reduction in workload by twenty per cent (approximately) is not insignificant and is certainly ‘reasonable’. The complainant dismissed suggestions that his daily commute was a relevant factor contributing to his stress. This is difficult to believe. He left home at 5.30am each day, travelling to Dublin by public transport and arriving home that evening at 9pm; a day of some fifteen and a half hours, five days of every week. Apparently, when he transferred to the location near his home he did not seek or require any reasonable accommodation in that workplace. Regarding the PIP it is true that a PIP is normally part of, or at least a precursor to the disciplinary process (although only where it does not succeed in what ought to be its primary objective of improving performance). The process therefore should not have been described as a PIP although again there was no evidence that the complainant raised this at the time or was actually apprehensive that it might have adverse disciplinary consequences beyond those facing him as a probationary employee. On that point, as the respondent submitted, and I agree, the complainant tended to overlook the fact that he was in a probationary process which has no guarantee of a successful outcome and is, in a general sense, subject to satisfactory progress through the probation period. So, in terms of substantive outcomes there is little, if any material difference between the two, indeed the requirements of a disciplinary process would afford him greater protections (were they applicable). In any event I find that the performance improvement process installed by the respondent was a normal management response to poor performance to address deficiencies in the performance of a probationary employee. The complainant was not subject as a result of this to some new adverse consequences as a result of the description of the performance improvement process as a PIP. It does not therefore become a breach of the anti-discrimination provisions by being referred to as a PIP. There is nothing to suggest that the same term would just as easily, if imprecisely be used in the case of an employee without a disability. The second area of complaint related to the frequency of the monitoring meetings. There were seven in all and they took place more or less weekly between February 21st and May 4th . The Manager who conducted them gave evidence that he was instructed to hold them weekly by a manager more senior to him and he did so. I did not detect any motive other than to have effective monitoring of the complainant and although it does seem unnecessarily frequent I accept that it was done in good faith. They were short, lasting about twenty minutes. As soon as the complainant made his feelings known on April 20th about the impact on him of the meetings they were discontinued. In respect of the first of the complaints against his co-workers the Office Manager confirmed in her evidence that while she became aware of the complainant having a disability in February 2018 she did not know what it was. Her role included reviewing progress on the complainant’s (and others’) work three times per month and addressing any backlog which had arisen. She did send the complainant a reminder and says that he confronted her and was very argumentative. She said that she found him very difficult to work with to such an extent that following the confrontation with the complainant she applied for, and got a transfer from the office in which the complainant worked, returning only when he left. As noted earlier the complainant made no formal complaint about this and there is nothing here to ground a complaint of harassment. The office manager was merely doing her job and and the sum total of the complaint against her related to one email. Regarding the complaints against the three co-workers the explanation accompanying the complainant’s complaint form that he declined to pursue these because he felt he would not get an effective remedy is lacking in all credibility, and in any event is not an acceptable explanation for failing to do so. The further submission that this lack of confidence was confirmed (‘to some extent’) when his probationary period was extended seeks to suggest that the extension of that probation had no basis in his performance and was unfair. The evidence of consistent shortfalls in the complainant’s probation provides a much more rational explanation for the extension. The extension was not part of a scheme to deny the complainant his rights and cannot be used to justify his failure to avail of the necessary workplace procedures to process his complaint. However, even looking at the complaints against the co-workers on their merits they are insubstantial. Summarising the four complaints above I find that the respondent acted in good faith and did its best to provide the complainant with reasonable accommodation despite having only belated and inadequately supported indications of his medical condition. The arguments adduced at the hearing in relation to how the workload was assessed for the purpose of the reduction were convincing and adequate for the purpose. The designation of the performance management process as a PIP was imprecise and sloppy but taking account of the complainant’s probationary status is of no consequence. The frequency of the meetings undoubtedly resulted in some unnecessary stress although there was also evidence that the complainant found them beneficial. However, such normal oversight of the complainant could not be described as harassment or discriminatory. The complaints against the co-workers are flimsy and must be set in the context that, at his insistence his co-workers were not aware of his disability, either at all in some cases, or its nature in the case of the office manager. The complaints are without merit and are not well founded. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that Complaint CA-00024459-001 is not well founded and it does not succeed. |
Dated: 2nd December 2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words: