Complainant

Respondent

Parties

Ciaran Lyons

Department of Employment Affairs & Social Protection

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-00025428-001

30/01/2019

The complainant commenced employment with the DEASP on March 5th 2018 as a temporary clerical officer (“TCO”). A copy of his contract was submitted in evidence, which shows that he was employed for the specific purpose of assisting the Department to prepare for the introduction of the General Data Protection Regulations (GDPR). He and four others were employed on specified purpose contracts to provide clerical support to the Department’s data protection project implementation team.   In November 2018, a decision was made to terminate the contracts of the five TCOs and they finished up in January 2019.

In contravention of his rights under the Employment Equality Act 1998, the complainant alleges that he has been discriminated against on the ground of age and disability, that he was denied reasonable accommodation for his disability and that he was harassed and victimised.

Chronology of Events Resulting in these Complaints

Having commenced employment on March 5th 2018, the complainant was on probation for three months. During this period, he was absent five times for 20 days. Before his contract terminated on January 4th 2019, he had been absent for 51 days. In accordance with the provisions of Civil Service Circular 5 of 2018 and the Public Service Management (Sick Leave) Regulations 2014 (SI 124 of 2014), he was entitled to six days’ paid sick leave while he was on probation. As he accumulated six days of absence by April 25th, the complainant was not entitled to be paid for any further absences during his probation.   He was absent again for 14 days between May 1st and June 1st and, as a result, he was overpaid by €797.12.   In accordance with the Sick Leave Regulations, he was required to reimburse the Department for this overpayment. He claims that the requirement to reimburse the overpayment is discrimination and victimisation.

March 2018

During his first week of employment, the complainant completed a New Entrants Form on which he indicated that he had operations on his back and that he required “a specific chair.”   He did not provide any particulars about the type of chair he needed. On March 12th, under the heading “Disability Status” on what is referred to as a “Staff Census Form”, the complainant again indicated that he had undergone “back surgeries,” ticking a box to affirm that this “causes substantial difficulty in any area of everyday life such as work or social life or leisure or cultural activities.”

On March 14th, the Department’s Disability Liaison Officer (“DLO”) sent the complainant a form to outline the nature of his disability and the accommodation he required. The complainant did not complete the form, but replied, “it does not have to be a special chair just basically one that fits my back.” The DLO replied and asked the complainant to complete the form and to ask his physiotherapist or surgeon to recommend the type of chair that he needed. She sent him a further email letting him know that new office chairs had recently been provided in the Department and one of these might be suitable. The complainant replied, “Thank you.   That sounds ideal.” He indicated that he would contact the facilities manager regarding the new chairs.

On March 21st, the complainant completed Part 1 of the form sent to him on March 14th, in which he said, “I have found a chair that is suitable. I suffer from bouts of chronic pain (back / legs). I just take care to avoid anything that might trigger a relapse.”

Almost from his first day in the job, the complainant said that two employees, a colleague TCO and a HEO made negative and derogatory comments about his age and appearance.   He said he heard comments such as “look at the state of his face” and “he wouldn’t get away with that if he was 18.” He said that the TCO stopped making remarks about him early on, but the HEO continued.  

April 2018

On April 11th, the complainant sent an email to the DLO indicating that he was having “a couple of problems” with his back.   He asked for some phone books so that his computer screen could be raised and he said that he might have to try a different chair. The DLO replied on April 13th and advised the complainant to request a workstation assessment from the Department’s Health and Safety Unit.   She also advised that he needed a doctor’s recommendation to procure a suitable chair. The DLO sent the complainant a copy of the workplace assessment form and advised him, “If you require a workplace accommodation as a result of a disability please complete the attached form.”

On April 16th, the complainant replied saying that he couldn’t get a consultant to sign the form because he had never consulted a specialist in Ireland, but only in the US and Holland. The DLO asked the complainant to ask his doctor to state what his disability is.   The complainant replied that he would and that his back was “bad today… and can deteriorate quickly unfortunately.” He said that he hoped that a change of seating would prevent it from getting worse. On April 17th, the DLO replied by email and asked the complainant to phone her. The complainant didn’t contact the DLO but, in April 24th, he gave his manager a copy of a letter from his doctor. The doctor recommended that “serious consideration be given to the provision of a suitable chair that will both enable him to be more comfortable and facilitate his work.”

On the same day, the complainant sent a mail to the DLO in which he said that he was unlikely to see out the day because his chair was exacerbating his injury. A high back adjustable chair was ordered and delivered on May 9th. The complainant wrote to the Health and Safety Officer, “Perfect fit for my back and similar to the one I use at home.”

August 2018

In an email sent shortly after 12 midday on August 10th, the complainant wrote to the HR Department and reported that he had been the subject of personal insults and bullying about his age and medical condition. He named two employees who had engaged in this conduct, who I will refer to as “EO” and “HEO.” The DEASP officer with responsibility for dealing with complaints under the Dignity at Work Policy, “DWP,” phoned the complainant around 4.00pm on the same day to discuss this email. It appears that the complainant said that he wanted the issue dealt with informally in the first instance. DWP followed up the call with an email in which he advised the complainant about the informal approach, which was to raise his concerns in the first instance with his line manager, “MGR.” He also set out various options and advised the complainant that the Employment Assistance Service (EAS) was available to him. As he was going on a week’s holidays, DWP gave the complainant the contact details for his two colleagues in the HR Department and he also gave him a copy of the Dignity at Work Policy. Before he went on leave on August 10th, DWP sent an email to his colleagues to let them know about the complaint and he told them that the complainant and his line manager might be in touch. Copies of these emails were submitted in evidence at the hearing.

A note from the complainant’s manager was submitted in evidence. He recorded that on Monday, August 13th, the complainant informed him that he had been “the victim of a prolonged campaign of insults, bullying and harassment at the hands of two named officers since the first week (March 5th) he joined our team…” He also recorded that the complainant told him that he had been “on the brink of resigning” the previous Friday, August 10th, when he spoke to the HR Department, because he was suffering from high blood pressure as a result of the stress. The complainant had been diagnosed with a second bout of skin cancer and he said that two officers joked about having to attend his funeral. He said that he had been insulted about his age and he alleged that on one occasion, one of the officers brushed past him in a doorway in an aggressive manner, swinging a door in his direction.

MGR said that he told the complainant that his complaint would be taken seriously and he said he tried to talk him out of resigning because “he is a valued staff member, respected and liked by all on the team.”   MGR noted that he informed the complainant of his options; he could make a formal complaint to HR, he could ask MGR to initiate an informal mediation process, or he could ask HR to initiate a mediation process with a neutral person. By return email on August 13th, the complainant agreed to go down the informal mediation route.

MGR said that he contacted the AP in the section where the two named officers who the complainant alleged made insulting remarks about him worked. Due to many of the people involved being on holidays, a decision was made to set up a local mediation meeting during the week commencing on September 3rd.

MGR told the complainant on August 15th that there would be a delay setting up the first local mediation meeting. He recalled that the complainant said that he understood and was happy for him to continue with the informal approach. The complainant said however, that he intended to seek advice because he had little faith in the informal route. MGR said that he encouraged the complainant to contact the Employee Assistance Service and he asked him to let him know by August 31st if he wanted to proceed informally.

To progress the informal investigation, it was decided that the AP of the complainant’s section would meet with “APIT,” the AP of the section where EO and HEO worked. The complainant also had a meeting with two senior managers in the Data Protection Unit and his complaint was brought to the attention of an Assistant Secretary and member of the Department’s Management Board. To provide him with an improved atmosphere at work, the Assistant Secretary approved the transfer of the complainant and his team to another location on August 20th, where other staff from the Data Protection Unit were located.   The complainant agreed that he would be happy with the move.

September 2018

On September 7th, AP of the section where the complainant worked met with his counterpart, the AP of the section where EO and HEO work. APIT met EO and HEO on September 10th and 13th. A copy of APIT’s note of these meetings was submitted in evidence. The notes state that the two officers denied the allegations and that they both stated that they were unaware that the complainant had an illness.

APIT reported her findings to DWP and his colleague in the Dignity at Work unit and she was advised to meet EO and HEO a second time. APIT met the two again on September 13th and they both said that they couldn’t figure out what the complaint was about. APIT asked them about a comment, “grumpy old man” and they said that they used this comment to each other on occasion. Neither employee was aware that the complainant had an illness and they said that they were both dealing with their own health problems. They were shocked about the reference to a funeral.

On September 28th, DWP wrote to the complainant to let him know the outcome of the informal enquiry. DWP told the complainant that the two people he alleged had made insulting remarks about his age and health denied doing so. He said that both men were given copies of the Department’s Dignity at Work Policy and reminded of their responsibility to behave in a respectful manner.

October 2018

On October 1st, the complainant wrote to DWP and said that he didn’t accept EO and HEO’s denials and he complained that in his view, the meetings with his supervisors were “at best muddled and worst attempts to undermine the complaints by undermining the complainant.” He said he would have to consider if he wanted to stay in the job. DWP was on holidays and another official in the HR division phoned the complainant on October 3rd. This official informed the complainant that he had an option to move to the next stage of the Dignity at Work Process, which involved a formal investigation.   A note of this conversation shows that the complainant responded that he would think about what to do. On October 15th, the complainant contacted DWP and said that he was unhappy with the outcome of the formal process but that he didn’t wish to proceed down the formal route. DWP contacted the complainant’s manager to let him know the outcome of the informal investigation and the fact that the complainant did not accept the denials of the two employees who he claimed insulted him. MGR agreed to check in regularly with the complainant, who, at this stage, was out sick.

On October 30th, the complainant contacted the HR division in response to an email he received on August 30th and October 1st, concerning an overpayment of wages. He was paid his wages when he was out sick for 20 days in March, April and May, but, in accordance with the Department’s sick pay scheme, he was only entitled to be paid for six days. He said that while he was on the telephone to an employee in the HR division, he was placed on hold, and an unidentified man came on the line and began interrogating him about his complaint of harassment. He said that before this call ended, the unidentified male “discussed my medical conditions and threatened to sue me for overpayment.” The complainant said that he sent several emails to the HR division to try to identify this person, but he was unsuccessful.

November 2018

On November 19th, the complainant received written notice to the effect that his contract would terminate on January 4th 2019 and his employment with the DEASP ended on that date.

On the form he submitted to the WRC in respect of this matter, the complainant stated as follows:

“I was discriminated against by a fellow Temporary Clerical Officer. By a HEO (higher executive officer) and by the HR Department. This complaint refers to constant derogatory references to my age. Sharing of my private medical information by an immediate boss with others in the office. Asking the HR Department questions in relation to my complaint and not getting a reply. Being moved from one building (Gandon House) to another building (Goldsmith Hall) after making a complaint against the HEO. Being told by someone in HR who refused to identify himself that he would sue me for an alleged overpayment (this related to a period in May of 2018 when I was off sick). On asking HR who this individual was I was told he did not exist.   Therefore no such phone call took place. Note being supplied with a specific chair I had requested before starting employment.   Having a door in the lobby pushed towards me as I passed through it by the HEO mentioned above. I would prefer to send copies of emails relating to this entire period as they will give a more complete (sic) of what was happening.”

The complainant brought a written submission to the hearing and the contents are summarised here under three headings:

Harassment

This complaint is about derogatory comments that the complainant said was directed at him by another TCO and by a HEO. The complainant said the TCO stopped making the comments but the HEO continued to do so.   Examples of the comments were, “grumpy old man,” “he wouldn’t get away with that if he was 18,” “look at the state of his face” and “he could play in the over 85s five aside.” The complainant did not say which comments were made by the TCO and which were made by the HEO.

The complainant alleges that, following his return to work after treatment for a possible melanoma, HEO joked, “I thought we were going to a funeral.” The complainant said that he was distressed to discover that his medical condition was “being openly mocked within the office and was common knowledge led to real distress on my part.”

On August 10th 2018, the complainant said that he was in a hallway speaking on the telephone to DWP about his complaint. He said that he suspected that HEO knew he was making a complaint and, later that day, he brushed past him in an aggressive manner, “forcing me to leap to one side to avoid contact with the doors.”

Following the move to a different location at the end of August 2018, the complainant said that he had a meeting with the AP for his section to discuss what had occurred in the previous location. The complainant said that the AP suggested that he could exercise his option to make a formal complaint, but the complainant said that the AP then suggested that the complaint “might be compromised by myself having mental health issues.” The complainant said that the AP “immediately backtracked on that statement but for me the damage was done.”

On October 30th 2018, the complainant said that he contacted the HR Department about an overpayment of sick pay and, during a conversation with a member of that section, he was placed on hold. He said that an unidentified man then came on the line “and began interrogating me over my original complaint relating to the harassment. The unidentified male also discussed my medical conditions and then threatened to sue me for the overpayment.” The complainant said that he made enquiries with the HR division, but the unidentified man was never located and he claims that he was told to “forget that guy.”

Reasonable Accommodation for a Disability

This is a complaint about the length of time it took for the Department to provide the complainant with a suitable chair. The complainant said that he overheard his manager referring to him as “a prick,” when he was contacted about the request for a chair. The complainant said that his absences were partly due to not having a suitable chair available for him from the date he started in the Department.

Victimisation

The complainant said that on August 30th 2018, at 9.02am, he sent an email to DWP outlining the meetings he had with MGR concerning his complaints. He said that MGR replied at 9.09am, setting out his options regarding a formal or informal approach. Following this, the complainant said that he sent a mail to DWP, noting that he had been informed on the same day that he was not entitled to be paid when he was out sick, that he had been overpaid and that the Department was seeking to recover the overpayments. He said that he considers this to be “an adverse reaction to my complaints and therefore a victimisation.”

Evidence of the Complainant

The complainant said that a TCO working with him referred to him as “a grumpy old man.” He also said that she commented, “he wouldn’t get away with that if he was 18,” although he could not recall the context of the remark. He said that her comments stopped after a while.

At the end of July 2018, the complainant said that he was out sick for two days and that his doctor thought that he might have a recurrence of a skin melanoma. On his return, he said that EO made the comment about going to his funeral. The complainant said that, at the time that he “let the comment go.” On August 10th, he said he was referred to as an oddball, and he also heard the remark, “look at the state of his face.”

Just after 12.00 midday on August 10th, the complainant sent an email to a member of the HR division, in which he said that he wanted to talk about some of the problems he encountered since he started working in the Department. In the afternoon, he left work and went to see a member of the HR team. He was then connected with DWP, from the Dignity at Work section, who gave him advice about how to proceed with his complaint.

Regarding his complaint of victimisation, the complainant said that his grievance is not about having to reimburse the Department for the wages paid while he was out sick, but the conduct of the unidentified man on the phone.

The complainant said that he was concerned that the behaviour that he encountered would follow him into his next job in the Civil Service and he claims that his complaint could have been handled differently. He said that he never made a formal complaint, and that he only submitted this complaint to the WRC when he discovered that HEO was on the interview panel for a job he applied for in January 2019.

Cross-examining of the Complainant

Mr Quinn summarised the complainant’s allegations as follows:

§    The comments by a TCO and HEO regarding the complainant’s age and skin condition;

§    Comments on the morning of August 10th by EO and HEO where he claims he was referred to as an oddball and that there was a reference to the condition of his face;

§    The incident where he claims that HEO pushed past him through a doorway;

§    The phone call with the unidentified man.

For the respondent, Mr Quinn said that the complainant agreed that he wanted his complaint dealt with informally, but in response, the complainant said, “not completely.”

In relation to his allegation that his line manager referred to him as “a prick,” Mr Quinn said that MGR will say that this never happened and he asked the complainant why he never mentioned this to the HR team. Also, this statement is not included on the form he submitted to the WRC.

Mr Quinn referred the complainant to the allegation he made about his AP suggesting he had mental health issues and he asked him why he didn’t bring this to the attention of HR.   The complainant agreed that he didn’t tell anyone in HR about this and he didn’t include it on the form he submitted to the WRC. The complainant said that he didn’t complain about the TCO’s comments because they stopped.

The complainant agreed with Mr Quinn that he decided to proceed informally and he said that he availed of support from the EAS.

Mr Quinn referred to the notes of the meetings that the AP for EO and HEO had with them both and their denials that they made insulting comments. The notes show that they said that they sometimes referred to each other as “grumpy old men.”

Mr Quinn then referred to an email from DWP, in which he informed the complainant of the outcome of APIT’s discussions with EO and HEO. The complainant said that he “got so annoyed that he went out sick.”   On October 3rd, he recalled that he was contacted by a member of the HR division and he told her that he was thinking about what to do next.   The complainant said that the AP in his section suggested that he might be motivated not to make a formal complaint because he had mental health issues. In any event, he decided against this course of action.   He said that DWP has told him of a “fourth way,” and this would be that EO and HEO would get a “black mark” on their files. Mr Quinn said that DWP will say that there was no suggestion of a “fourth way.”   In response, the complainant said that his AP also made this suggestion.

Mr Quinn referred to the complainant’s request for a special chair and his complaint that he was six weeks in the job before he got one that suited him. The complainant started work in the Department on March 5th and on March 7th, he looked for a special chair. The DLO contacted him in March 14th and asked him to get his consultant to specify the type of chair he needed.   In the meantime, she advised him that new chairs had been delivered to the office where he worked, one of which might be suitable. The complainant agreed that one of the chairs suited him. On April 11th, however, the complainant sent an email to the DLO in which he said he was having trouble with his back and that he might have to try a different chair. On April 24th, he provided a letter from his GP who stated that he required “a suitable chair” due to ongoing back pain. The Health and Safety Officer ordered a higher quality chair than the standard office chair and this was delivered on May 9th. The complainant responded to her that it was “a perfect fit for my back.”

The complainant said that his complaint is that it took so long to get a chair that suited him.

Mr Quinn referred finally to the issue of the unidentified man on the telephone on October 30th. Mr Quinn said that DWP’s evidence will be that the complainant said that he wasn’t sure if the person was from the HR division or from the payroll shared services unit. Mr Quinn said that this matter was investigated exhaustively; the complainant said that he was informed by a person in the HR division that she knew who it was on the phone but that unless she “beat it out of them” they would never own up. He agreed that the HR department carried out an investigation and that they could not identify who the person was.

Closing Remarks of the Complainant

The complainant said that he was disappointed in the way his complaint was handled, and that he believed in “the fourth way.” He said that if the phone call on October 30th hadn’t happened, he wouldn’t be here.

Harassment

It is the respondent’s case that this complaint cannot succeed for three reasons:

1 The complainant was treated exactly the same as other employees;

2 He has failed to exhaust the internal grievance procedures which were available to him;

3 If he is making a complaint of vicarious liability, as set out at section 15 of the Employment Equality Act, then the respondent has a full defence, as they had comprehensive supports and procedures in place to deal with a complaint of bullying and harassment and these procedures were engaged appropriately and efficiently in this case.

In relation to the complainant’s allegations that an unidentified man appeared to be informed about the fact that he made a complainant of harassment and threatened to sue him for the overpayment of wages, Mr Quinn said that the HR division could do no more than investigate this matter fully, which it did and the complainant has not demonstrated that an employee from the Department was involved in this incident.

Reasonable Accommodation for a Disability

It is the respondent’s case that this complaint cannot succeed because the Department acted promptly to provide accommodation in the form of a specific chair, as requested by the complainant. This was in place within days of his commencement in March 2018 and an alternative chair was provided within two weeks of him providing a doctor’s note on April 24th.

Victimisation

The complainant exceeded his entitlement to sick pay during probation by 14 days. It is the respondent’s case that the deduction of the wages that were overpaid was entirely appropriate and that the Department had no discretion regarding this matter.

Evidence of Mr DWP

In response to direct questioning from Mr Quinn, DWP said that on October 15th, the complainant told him that he had decided not to go down the formal route with his complaints. Mr Quinn asked DWP about the complainant’s reference to “a fourth way” and the suggestion that a “black mark” would be placed on the files of EO and HEO. DWP said that there was never any reference to a “fourth way” or black marks on files.

DWP said that the complainant did not request mediation with EO or HEO. In his evidence, he went through the sequence of events which have been outlined above. Following the denials by EO and HEO that they had made insulting comments regarding the complainant, DWP said that he asked APIT to meet them again to stress the importance of treating everyone with respect and to give them a copy of the Dignity at Work Policy. APIT then met with the AP for the complainant’s section. When he provided feedback to the complainant about the outcome of the informal investigation, DWP said that he responded that he would think about what he would do next. When he returned from sick leave in October, he confirmed to DWP that he did not want to proceed down the formal route. DWP said that he was satisfied that the complaints were handled correctly and, by October 15th, he considered the matter to be closed.

DWP was asked about the unidentified man that the complainant said he spoke with on October 30th. He said that this was investigated thoroughly by the HR division and the person could not be identified.

Cross-examining of DWP

The complainant suggested to DWP that they had a conversation on two occasions about “a fourth way.” DWP said that he is 100% sure that this conversation did not happen.

The complainant recalled that the first time he met DWP, he told him about EO and HEO mimicking clients on the telephone. DWP said that he remembered that comment.

Evidence of HRD

HRD is a Personnel Officer in the HR division. Asked about reasonable accommodation for the complainant’s back injury, he said that there are 6,500 employees in the Department and they have one disability liaison officer (DLO). HRD said that he had examined the emails between the complainant and the DLO and he concluded that his request was dealt with in a timely manner. HRD said that the complainant received the chair that he required within two weeks of providing a letter from his doctor.

HRD said that the complainant’s allegations about comments of EO and HEO were investigated and he did not raise them again. The phone call with the unidentified man was also investigated and this matter was not raised again. HRD said that the allegation about the actions of the unidentified man were serious; they revealed a possibility that the complainant’s medical condition was divulged to another person and that information about his absences were also disclosed. He said that he was concerned that so much information was alleged to have been discussed on the call. He said that all the males in the department were interviewed. The importance of the sensitivity of personal information was emphasised and they were informed that such conduct would not be tolerated. HRD told Mr Quinn that no other action could have been taken in response to this complaint. He also said that the complainant did not properly identify the person that he actually spoke with on the first part of the call on October 30th and the person he named was not the person who took his call.

Cross-examining of HRD

The complainant asked HRD if there was a record of the phone call he had with a person in the HR division on October 30th 2018. HRD said that the call was not transferred.

The complainant said that a person in HR told him that she knew who it was, but HRD said that he did not accept that this was the case.

Evidence of MGR

MGR denied that he referred to the complainant as “a prick.” He said that he had a good relationship with the complainant and that he would never refer to a colleague using that term. He said that today, at this hearing, was the first time he heard the allegation that he made this comment.   He said that no manager would address a member of his staff in that way.

MGR said that he was not aware of any allegation about comments made by a TCO. The complainant told him about comments made by EO and HEO. During his evidence, MGR described the seating plan in the office and the proximity of the complainant to EO and HEO. He said he never heard them making comments about the complainant and he can’t understand why he waited until August to complain.

On August 13th, MGR said that he gave the complainant a copy of the Dignity at Work Policy and he outlined his options regarding how his complaint could be managed.   MGR said that he wanted to make a complaint, but he didn’t want to engage with EO or HEO. MGR said that the complainant confirmed that he wanted to proceed informally, but that he would get external advice. He said that it was clear to him that the complainant was upset and he said that he was suffering from high blood pressure.   MGR said that his first concern was for the complainant. He had had a lot of absences and a second bout of skin cancer. He said that he told the complainant that he would deal with some of his absences locally, and if he needed a half day off, as long as he produced a medical certificate, this could be authorised.

When the investigation was over, he agreed with DWP that he would check in on the complainant regularly. Over the next few months, there was no further mention of the incidents he complained about in August; occasionally he said that his back was a bit stiff.

Cross-examining of MGR

The complainant asked MGR, “did you tell me that you heard (EO and HEO) mimicking clients?” MGR said that he never said this. MGR agreed that one of the two made inappropriate remarks and that this was addressed by a HEO in their section who told him to stop. MGR said that he sat nearer to EO and HEO than the complainant and, if he heard them addressing someone on his team in a disrespectful manner, he would intervene. He said that when he heard about the complainant’s allegations, he was shocked. If he had known about the problem, he would have addressed it.

MGR agreed that he sent the complainant a text message saying, “it would be good for you to be away from those other two clowns.”   He said that he regretted sending this message. He said that he firmly believes that the complainant was not bullied by them.

Evidence of APIT

APIT said that she sits in close proximity to EO and HEO and the complainant and she never heard any of the comments alleged to have been made. She met both men around the middle of October 2018. She said that EO had no recollection of making comments about the complainant’s age. APIT said that she also met the HEO who, she said was unaware that the complainant had been diagnosed with skin cancer. He also said that he would not have had the strength to push through the doors as alleged by the complainant. At a follow-up meeting with both men, APIT said that they were upset about the accusations. They said that they sometimes referred to each other as “grumpy old men.” APIT said that she reminded the two men of their responsibilities towards others and she gave them a copy of the Dignity at Work Policy.

APIT said that she was surprised about the allegations. She said that in general conversation, she only recalled talk between the men that was about football.

Cross-examining of APIT

The complainant asked APIT if she believed that the “grumpy old man” comment was directed at him and she said, “no.”

Closing Remarks on Behalf of the Respondent

Referring to the complainant’s allegations of harassment, failure to provide reasonable accommodation and victimisation, Mr Quinn summarised the respondent’s position.   He said that there are two ways in which discrimination can be proven; the first is that an employer is found to be vicariously liable for the conduct of their employees and the second is that a complainant who is discriminated against proves that their employer did not deal adequately with their complaint.

Mr Quinn referred to the complaint about alleged comments of the TCO and he said that the complainant never made a complaint about this person’s behaviour.

Section 15(e) of the Employment Equality Act provides that it shall be a defence to an allegation discrimination if an employer can show that reasonable steps were taken to prevent discrimination taking place. It is the respondent’s case that the approaches of DWP and HRD were such that an investigation was carried out and concrete action was taken by the Department to prevent any such alleged inappropriate conduct happening.

Mr Quinn submitted that the complaints against EO and HEO have not been proven and the burden of proof that discrimination occurred has not been discharged.

Regarding the phone call that the complainant said happened on October 30th, Mr Quinn said that there is no proof that the conversation that the complainant referred to ever happened. If it did happen, he has not demonstrated that the person he spoke with was from the HR division. The matter was rigorously investigated and the Department took all reasonable steps to prevent an incident like this from happening again.

Mr Quinn submitted that the complainant has not shown that this is discriminatory conduct that would not have occurred in respect of a comparator of a different age of disability.

Regarding the requirement for reasonable accommodation for his back pain, Mr Quinn submitted that the only delay that occurred in providing the complainant with a suitable chair occurred because he failed to provide a report from his medical specialist when it was requested. In the end, he was allocated a chair even though he did not provide a letter from a specialist but, from his GP, who did not specify the type of chair that he needed.

In summary, Mr Quinn argued that the complaints of discrimination have not been proven and the Department took every reasonable step to prevent the complainant being harassed. On this basis, it is the respondent’s case that the complainant has not discharged the burden of proof that demonstrates that, based on the primary facts, he has been treated less favourably than a person of a different age, or a person with a different disability or with no disability.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) Where in any proceedings, 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.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, he has been treated less favourably than his colleagues in respect of his age and disability.

The respondent’s submission refers to the Labour Court decision in Mitchell v Southern Health Board, DEE 11, [2001] ELR 201, to support their contention that, based on the primary facts, the complainant has not shown that he was discriminated against:

Describing the evidential burden on the complainant, the Labour Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

“It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

The Primary Facts

Harassment

On August 10th 2018, the complainant reported to the HR unit that he had been the subject of disparaging remarks about his skin cancer, “we thought we’d be going to a funeral” and his age, “grumpy old man” and that he was referred to as an oddball. He said that the remarks were made by two named employees, who we have referred to as EO and HEO. He also said that another colleague, a TCO had engaged in such insulting remarks, but that she had stopped.

One element of the complainant’s report to the HR division related to his perception that HEO knew that he made a complaint and that he brushed past him aggressively.

On October 30th, the complainant said that he was interrogated on the telephone by an unidentified man, who asked him about his complaint of harassment and who appeared to know about his medical history.

The complainant opted to have these matters investigated informally. The section of the HR division responsible for the Dignity at Work Policy carried out an investigation and EO and HEO were interviewed by their AP. They denied making offensive comments about the complainant. They were informed of their responsibility to treat colleagues with respect and they were given a copy of the Dignity at Work Policy.

On October 1st 2018, the complainant wrote to DWP and said that he didn’t accept EO and HEO’s denials. On October 16th, he informed DWP that he did not wish to proceed with a formal investigation.

Reasonable Accommodation for a Disability

When he joined the Department on March 5th 2018, the complainant asked for “a special chair” but he did not specify the type of chair he required and he did not complete a form for his consultant to recommend a chair. He accepted a new office chair that was available. On April 24th, he gave a letter from his doctor to his manager and a higher grade chair was provided on May 9th.   Although again, no specifications were provided, the complainant reported that this chair was perfect for his needs.

Victimisation

The complainant was paid for 20 days when he was out sick during his probation. As he had already been paid for six days, in accordance with Civil Service rules regarding sick pay, he was required to reimburse the Department for 14 days’ wages.

Findings

At the hearing, the complainant and his line manager agreed that a colleague HEO in the area where they worked, told EO and HEO to stop making remarks about the complainant.   It is apparent therefore, that some remarks were made which were considered by one other person, apart from the complainant, to be offensive. The remarks may have been made on August 10th or sometime before that date. The complainant said that he was referred to as an oddball and he said that he also heard, “look at the state of his face.”   I am doubtful about this latter remark, because, from what I could discern on the day of the hearing, the complainant has no visible disfigurement on his face, and certainly no disfigurement that would be noticed by a normal bystander. While EO and HEO denied that they made remarks about the complainant’s age, I am satisfied that certain remarks were made that may not have been related to his age, or to his skin condition, but which were intended to humiliate him.

Section 15(3) of the Employment Equality Act sets out the responsibility of employers when it comes to discriminatory conduct:    

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee -

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

I note from Anthony Kerr’s consolidated version of the Employment Equality Act in Westlaw, (© Thomas Reuters 2020) that this section of the Act was inserted in response to the High Court decision in The Health Board v BC and the Labour Court [1994] ELR 27, where Mr Justice Costello found that the Employment Equality Act 1977 contained no provision for the vicarious liability of an employer in a complaint of sexual harassment. While this complaint is about age and disability, the same principles apply. It is apparent that the 1998 Act intends that a conclusion that discrimination has occurred (on any of the nine grounds), must take account of the employer’s response to a complaint of discrimination.

In the case under consideration here, I am not satisfied that discrimination occurred, but I am satisfied that unacceptable remarks were made about the complainant which he found distressing. An investigation was carried out and the protagonists denied any wrong-doing. EO and HEO were made aware that any reference to age or appearance in the workplace is unacceptable and that such comments could be discriminatory. They were informed that the behaviour complained about was unacceptable and they were reminded of their responsibility to treat their colleagues with respect.

The Department’s policy on Dignity at Work was used to good effect to manage the complainant’s allegations. In response to his complaint, officials in the Department took steps to ensure that the conduct he complained about was investigated and they made every reasonable effort to make sure that it wouldn’t happen again. The evidence shows that, after he submitted his complaint on August 10th 2018, there was no recurrence of the behaviour he complained about.  

Failure to Exhaust the Dignity at Work Procedure

While the complainant was unhappy with the outcome of the investigation, he decided not to proceed any further and make a formal complaint. More than one person in authority informed him of his right to make a formal complaint. When his contract finished in January 2019, he applied for other jobs in the Civil Service and he was called for an interview. When he discovered that HEO was on the interview panel, he said that he decided to submit a complaint to the WRC. In this regard, I refer to the Labour Court decision in the case of Gregory Geoghegan trading as TAPS v a WorkerINT1014, where the chairman stated,

“The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

If the complainant was genuinely dissatisfied with the outcome of the investigation conducted by the Department in September and October 2018, it was incumbent on him to exhaust the procedures available to him before submitting a complaint to the WRC.   I find that his failure to do so is a major flaw in his argument that he was the subject of discrimination.

Conclusion

Having examined the primary facts adduced by the complainant, it is my view that they are inadequate to show that, on the balance of probabilities, he was subjected to age-related discrimination, harassment because of a disability or that he was victimised for making a complaint about harassment. For this reason, the burden of proving the absence of discrimination does not shift to the respondent.

I have concluded that the complainant has failed to discharge the burden of proof which requires him to establish the primary facts that can be relied upon to establish a complaint of discrimination. Based on this conclusion, I have decided that his complaint fails.

Discrimination on the ground of age and disability