EDA1935

Introduction
This is an appeal by Asim Mumtaz (“the Complainant”) against the Adjudication Officer’s Decision ADJ-00016282 in his complaint of discrimination on the ground of disability by ESB International (“the Respondent”). The complaint was made pursuant to the Employment Equality Acts 1998-2015 (“the Acts”).

The Adjudication Officer found that the complaint was not well-founded.

Background

The Complainant is employed with the Respondent since 17^thSeptember 2007. He was diagnosed with early-onset Parkinson's Disease in 2012. He has kept the Respondent advised of his condition and has been attending the Respondent’s Occupational Health Department since 2013. It is his submission that since the summer of 2015 his working conditions have deteriorated and that although he has raised these issues with the Respondent, the Respondent has failed to resolve those issues.

The Complainant lodged his claim with the WRC on the 13^thAugust 2018. The cognisable period for the purpose of the Act therefore is 14^thFebruary 2018 to the 13^thAugust 2018.

Complainant’s case

It is the Complainant’s case that he was discriminated against by the Respondent on the ground of disability. It was his submission that there are three incidents of discrimination within the cognisable period. The first incident relates to the provision of a new PC monitor. It was the Complainant’s submission that it took two years and six months after a work station assessment was carried out which recommended that he be provided with a new monitor. It was his submission that no other staff member had to wait that long for new equipment.

The second issue he identified relates to the provision of a new mobile telephone. He had to wait thirteen weeks for a new telephone. It was his submission that the Respondent was aware that he needed the telephone and that other staff did not have to wait that long for a replacement telephone.

The third issue relates to a meeting with his line Manager on the 20^thMarch 2018 . It was the Complainant’s submission that the Team Leader questioned him about his illness despite the fact that he had emailed into the office a medical certificate covering the absence. It was the Complainant’s submission that these incidents constituted discrimination on the ground of disability within the cognisable period.

Respondent’s position

It is the Respondent’s position that they have worked with the Complainant in relation to his disability and they reject any suggestions of discrimination. In response to the three incidents identified by the Complainant the Respondent denies that there was any discrimination. In relation to the first incident relating to the PC monitor, it is the Respondent’s submission that the Complainant’s line Manager was not aware that an order for a new monitor had been made and therefore he did not follow up on it. This was purely an administrative error and was not in any way linked to the Complainant’s disability.

In relation to the second issue the Respondent had changed the mobile telephone provider at that time and there was a general delay in getting telephones. Other members of staff had even longer waits before they received a telephone and the delay was outside the control of the Respondent.

In relation to the third issue, it is the Respondent’s position that return-to-work meetings after absences are normal and that the comments the Complainant is relying on have been taken out of context. It was never demanded that the Complainant would have to give verbal updates on his condition. The Respondent had no issue with the interactions with the Complainant relating to his disability during the cognisable period.

The Respondent submitted to the Court that the Complainant has not made out a prima facia case of discrimination and therefore his claim must fall.

The law

Discrimination in accordance with the Acts is set out in s6 and states:-

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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 specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —

  (i) exists,

  (ii) existed but no longer exists,

  (iii) may exist in the future, or

  (iv) is imputed to the person concerned,

  ( b ) a person who is associated with another person —

  (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

  (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination.

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

  ( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),

  ( b) that they are of different civil status (in this Act referred to as “ the civil status ground ”),

  ( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”),

  ( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation ground”),

  ( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”),

  ( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”),

  ( g) …….

  (2A) Without prejudice to the generality of subsections (1) and (2) , discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

  (3) ( a ) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.

  ( b ) Notwithstanding subsection (1) and section 37(2) , an employer may set a minimum age, not exceeding 18 years, for recruitment to a post.

It is for the Complainant in the first instance as set out by this Court inMitchell v Southern Health Board[2001] ELR 201 to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which he relies. InMelbury Developments v Arturs ValpetersEDA0917the Courtstated“ Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The Court, having carefully considered the three incidents identified by the Complainant and the Respondent’s response to same as set out above, finds that in the circumstances of this case the Complainant has not made out a ‘prima facie’case and therefore his claim cannot succeed.

Harassment claim

It is the Complainant’s submission that the return to work meeting of 20^thMarch 2018 and the requirement for him to give oral updates on his condition was harassment.

The Respondent submitted to the Court that the meeting on 20^thMarch 2018 was a standard return-to-work meeting and that the Complainant was never requested to give oral updates of his condition.

The applicable law

The first issue arising in the case is whether the incident complained of constitute discrimination within the meaning of s.14a of the Acts. That section provides:-

• (1) For the purposes of this Act, where —

  (a) an employee (in this section referred to as ‘ the victim ’ ) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘ the workplace ’ ) or otherwise in the course of his or her employment by a person who is —

  (i) employed at that place or by the same employer,

  (ii) the victim ’ s employer, or

  (iii) a client, customer or other business contact of the victim ’ s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

  or

  ( b ) without prejudice to the generality of paragraph (a) —

  (i) such harassment has occurred, and

  (ii) either —

  (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

  (II) it could reasonably be anticipated that he or she would be so treated,

  the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim ’ s conditions of employment.

It is the view of the Court that what is complained of in this case does not come within Section 14 (a) of the Acts and therefore the complaint must fail.

Victimisation claim

In relation to the claim of victimisation it is the Complainant’s submission that the protected act was the meeting of 26^thApril 2018 when he raised a number of issues with the HR Manager and that the penalisation occurred on 11^thMay 2018 when the Respondent asked him to attend the ESB Doctor. This was approximately six weeks after he had returned from sick leave. It was his contention that if he had not raised the issues at the meeting, he would not have been sent to the Company Doctor.

It is the Respondent’s submission that the incident does not amount to victimisation. The Complainant’s absences exceeded fifteen days in a twelve-month period and, in accordance with the attendance policy, it triggered a referral . The referral is not triggered by the line Manager but is triggered by Occupational Health. Referral to the Respondent’s Doctor is not a punishment nor sanction.

Section 74 of the Acts defines victimisation in the following manner

• — (1) In this Part, unless the context otherwise requires…..

  victimisation” shall be construed in accordance withsubsection (2)

  (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

  (a) a complaint of discrimination made by the employee to the employer,

  (b) any proceedings by a complainant,

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

  (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

  (e) an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment,

  (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

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

The seminal case in setting out the test for penalisation / victimisation isToni & Guy Blackrock Limited v Paul O’ NeillDetermination no HSD095where the Court held that“in order to make out a complaint of victimisation 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 the Act. 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 suggested 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.”

In this case, the detriment complained of was being referred to the ESB Doctor. The Court, having reviewed the Respondent’s attendance policy, is satisfied that the referral was triggered in line with the policy and therefore was not penalisation. In those circumstances the complaint must fail.


Determination
For the reasons set out herein, the Court is satisfied that the Complainant was not discriminated against on the ground of disability and therefore that claim must fail. The Court determines that the claim of harassment does not come within the ambit of section 14 (A)of the Acts and therefore that claim must fail. Finally, the victimisation claim must also fail as the referral to the Company Doctor was in line with the Company’s policies and was not a penalisation The Complainant’s appeal cannot succeed and it is dismissed. The Decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
CO'R______________________
19 November, 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.