ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00021008

Parties:

Complaint(s):

Date of Adjudication Hearing: 02/10/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)

The complainant referred a complaint under the Employment Equality Acts, 1998-2015 to the Workplace Relations Commission alleging 8th April 2019 that the respondent had (i) discriminated against him in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts, (ii) harassed him in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 14A of those Acts, (iii) dismissed him in circumstances amounting to discrimination in terms of section 6(2) of the Employment Equality Acts, 1998- 2015 and contrary to section 77 of those Acts (all on grounds of disability) and (iv) victimised him in terms of section 74(2) of the Employment Equality Acts, 1998- 2015.

In accordance with his powers under the Acts the Director delegated the complaint to the undersigned – Jim O Connell for investigation and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 2nd October 2019, the date the complaint was delegated to me.

Background

The claimant commenced employment with the respondent on the 5th June 2001 as a clerical officer.

The claimant submitted that the core of his complaint is summoned up as the failure of the respondent to comply with the Code of Practice for Employment with a disability in the Irish Civil Service and the subsequent discrimination of the claimant on several grounds as in the complaint to the WRC.

The claimant stated that the Code of Practice states that the Director General or an appointed person accountable to him will be responsibility for equality of opportunity for persons with disability within the respondent’s remit

The claimant submitted details where he did not receive support. On the 20th September 2018 the claimant stated that he visits his GP by his own initiative on the 27th September 2018 when it was apparent to him that his meetings with respondent’s HR over his grievance were taking a turn for the worse. The claimant stated that he had complied with all policy and procedures as per his contract of employment.

The claimant submitted that he should have been asked for a fitness to work certificate from his GP and then have been facilitated to conduct a Grievance Procedure properly as per circular 11/2001 as would have been afforded to any other employee.

At the end of November 2018, he was informed that he was no longer on compulsory sick leave but that he was now on unauthorised absence and he would have to repay a large bill immediately.

The claimant stated that his GP requested that a Mediation process be set up, but the respondent did not respond neither did the respondent design a retention strategy for him.

In the middle of March 2019, the claimant stated that he was offered ill health retirement as per Circular 22/2007 the he added that the noncompliance with the Code of Practice over 171/2 years directly led to the build-up of the entrenched situation that arose in October 2018.

The Claimant submitted that the respondent did not seek any meaningful management of his disability but instead used his disability to discriminate against him and seek his removal from the office.

The claimant also stated that the same person (ML) was the person investigating his concerns and he was also the person deciding on a compulsory sick leave call and thirdly he was the person making the overall decisions against him.

A summary of the respondent position

The claimant commenced employment with the Respondent on the 6th June 2001 as a clerical officer. The respondents HR was advised of concerns regarding the behaviours over the career of the claimant. These issues have given HR cause for concern over claimant's health and wellbeing.

HR have on more than one occasion referred the claimant case for advice from the Office of the Chief Medical Officer for the Civil Service.

On previous occasions the respondent advised that the claimant is receiving appropriate treatment and is fit to return to work.

The current events arose from engagements with Respondents Assistant Principal Office HR on September 2018.

The Officer became concerned about the fitness of the claimant for work, this is provided for in the Circular 5/2018 governing the management of sick leave in the Civil Service.

The claimant was requested that he attend his GP as he (respondent HR) had formed the opinion that the claimant may need medical attention.

The claimant was also informed that the opinion of the respondent’s CMO would be sought before a return to work was permitted.

The Civil Service policy on managing sickness absence is contained in the Department of Public Expenditure & Reform Circular 5/2018,

The policy states the following in Section 3.5

“Civil servants who appear ill in the workplace”

“No civil servant who appears to require medical attention should be allowed to remain on duty in the workplace. Where a civil servant's well-being becomes a concern, their Line Manager should make appropriate arrangements for that civil servant to either return home or receive appropriate medical attention. HR Units should provide support for Line Managers in such circumstances where required."

As part of this process the respondent wrote to the claimant outlining this information and that respondent Human Resources were referring his case to the Office of the respondents Chief Medical Officer seeking medical advice. This is once again in accordance with the policy in this area, sections 2.6 and 3.8 refer.

The respondent’s HR also recommended that the claimant engage with the respondents Civil Service Employee Assistance Service.

The claimant refused to engage with the CMO or any of the processes and supports of this until early 2019.

The claimant attended for a consultation with named Medical specialists of CHI in Cork at the request of the CMO.

A report from that office was subsequently submitted to the CMO which advised that the claimant was permanently unfit for work for the respondent.

The Respondent have now offered retirement on III Health grounds to the claimant as provided for in Circular 22/07.

That is the current position of the respondent. The claimant was advised that he may appeal the CMO's advice and determination in accordance with the Circular. The claimant was advised that he may appeal the CMO’s advice and determination in accordance with the Circular and he has failed to lodge an appeal

We would submit that the claimant has not been treated unfairly in contravention of the relevant Act.

Findings

3.—       (1) A person who is an employer or who obtains under a contract with another person the services of employees of that other person shall not discriminate against an employee or a prospective employee or an employee of that other person in relation to access to employment, conditions of employment (other than remuneration or any condition relating to an occupational pension scheme), training or experience for or in relation to employment, promotion or re-grading in employment or classification of posts in employment.

(2)         An employer shall not, in relation to his employees or to employment by him, have rules or instructions which would discriminate against an employee or class of employee, and shall not otherwise apply or operate a practice which results or would be likely to result in an act which is a contravention of any provision of this Act when taken in conjunction with section 2 (c).

(3)         Without prejudice to the generality of subsection (1), a person shall be taken to discriminate against an employee or prospective employee in relation to access to employment if—

(a)         in any arrangements he makes for deciding to whom he should offer employment, or

(b)         by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons where the circumstances in which both such persons or classes would be employed are not materially different, he contravenes subsection (1).

(4)         Without prejudice to the generality of subsection (1), a person shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if he does not offer or afford to a person or class of persons the same terms of employment (other than remuneration or any term relating to an occupational pension scheme), the same working conditions and the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals (other than a dismissal referred to in section 25) and disciplinary measures as he offers or affords to another person or class of persons where the circumstances in which both such persons or classes are or would be employed are not materially different.

(5)         Without prejudice to the generality of subsection (1), a person shall be taken to discriminate against an employee in relation to training or experience for or in relation to employment if he refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as he offers or affords to other employees where the circumstances in which that employee and those other employees are employed are not materially different.

(6)         Without prejudice to the generality of subsection (1), a person shall be taken to contravene that subsection if he discriminates against an employee in the way he offers or affords that employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access or if in those circumstances he refuses or deliberately omits to offer or afford that employee access to opportunities for promotion.

(7)         Without prejudice to the generality of subsection (1), a person shall be taken to discriminate against an employee or prospective employee where he classifies posts by reference to sex and the classification is not a case referred to in section 17 (2).

Equality clause.

4(1)       If the terms of a contract under which a person is employed do not include (whether directly or by reference to a collective agreement within the meaning of the Act of 1974 or otherwise) an equality clause, they shall be deemed to include one.

(2)         An equality clause is a provision which relates to terms of a contract (other than a term relating to remuneration or an occupational pension scheme) under which a person is employed and has the effect that where the person is employed in circumstances where the work done by that person is not materially different from that being done by a person of the other sex (in this section referred to as “the other person”) in the same employment—

(a)         if (apart from the equality clause) any term of the contract is or becomes less favourable to the person than a term of a similar kind in the contract under which the other person is employed, that term of the person's contract shall be treated as so modified as not to be less favourable, and

(b)         if (apart from the equality clause) at any time the person's contract does not include a term corresponding to a term benefiting the other person included in the contract under which the other person is employed, the person's contract shall be treated as including such a term.

(3)         An equality clause shall not operate in relation to a variation between a person's contract of employment and the contract of employment of the other person if the employer proves that the variation is genuinely a consequence of a material difference (other than the difference of sex) between the two cases.

(4)         Where a person offers a person employment on certain terms, and if on his acceptance of the offer any of those terms would fall to be modified or any additional term would fall to be included by this section, the offer shall be taken to contravene sections 3 (1) and 3

6. (1) Any person or educational or training body offering a course of vocational training shall not, in respect of any such course offered to persons over the age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)—

(a)          in the terms on which any such course or related facility is offered,

(b)         by refusing or omitting to afford access to any such course or facility, or

(c)          in the manner in which any such course or facility is provided.

(2)         In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such activity.

I find that Section 6(1) of the Employment Equality Acts, 1998 -2015 provides as follows; - (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 grounds specified in subsection (2) in this Act referred to as the ’discriminatory ground’

Article 6(1) of Directive 2000/78 provides as follows – Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary”.

Section 85 A (1) of the Act provides as follows in the workplace where in any proceeding’s facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

Findings

It is submitted whether the complainant was discriminatorily dismissed in terms of Section 6(2)(f) of the Acts, contrary to Section 8(6) (section 6(1) of the Acts provides that discrimination shall be taken to occur where, on any of the grounds mentioned in subsection 2 one person is treated less favourably than another is, has been or would be treated

Section 85(a) of the Acts sets out the burden of proof that applies to claims of discrimination.

It requires the complainant to establish the burden, in the first instance, facts upon which he can rely in asserting that he suffered discrimination treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

Prima facie evidence has been described as “evidence which in the absence of any credible contradictory evidence by the respondent would lead any reasonable person to conclude that discrimination has probably occurred.

I find that the claimant provided no reasonable evidence to support the allegations of discrimination, victimisation or harassment made against him.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

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 the claimant has failed established the burden of proof test

I find that the claimant was not discriminated or victimised against in

1. getting a job
2. promotion
3. training

I find that the claimant was not discriminatory dismissed he was asked to provide medical certificates to cover his absence and this was also confirmed at the hearing.

I find that the claimant was not harrassed at all times he was requested to comply with his contract and circulars covering his employment.

I find that the claimant was not discriminated against in opposing discrimination

I find that while the claimant went to his own GP he refused to go to the respondent’s CMO, who in accordance with policy and procedures has to state whether the employee is fit or unfit for work

I find that the claimant was send to an outside consultant who confirmed the claimant was not fit for work.

The claimant has the opportunity to appeal this decision, but he has not done so.

I find that the respondent accepts the claimant has a disability however I find they have not discriminated against him because of his disability.

In accordance with Section 79(6) of the Act, I declare this complaint is not well founded and fails.

Dated:   17-4-2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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