ADJ-00030172

Complainant

Respondent

Parties

Gemma  Kiernan

J and E Davy trading as Davy Stockbrokers

Representatives

  In person

Niamh Ní Cheallaigh, IBEC

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-00040324-001

08/10/2020

This is a disability- based discrimination complaint arising from a diagnosis that the Complainant had epilepsy.

The Complainant contends that ten days after she was diagnosed with epilepsy the Respondent HR manager suggested that she resign her position or face likely disciplinary action, following which the Complainant resigned.

The Respondent contends that their suggestion, that the Complainant resign, arose from performance issues in the Complainant’s work that pre-dated her diagnosis with epilepsy and out of a concern that, given her health problems, continuing with the performance improvement plan that she was engaged with might be more injurious to her, than resigning her employment.

The Complainant started work with the Respondent as an administrator in the Private Client Department on 1 July 2019.

The Complainant passed her six- month probation period in December 2019 but around this time the Complainant started to feel tired and unwell and she attended her doctor. Blood results revealed no explanation for her symptoms and the Complainant attempted to continue with life and her work, attempting to ignore her symptoms.

In February 2020 her line manager raised performance discussions with the Complainant because the Complainant had made errors inputting data into the Respondent’s accounts system.  Her line manager based these discussions relying on a document, which had issued to the Complainant post-probation which had then highlighted the areas that needed improvement then and these areas still required improvement.

In mid-March 2020, due to the Covid pandemic the Respondent implemented a work-from-home policy for staff.  

On 30 March 2020 the Complainant suffered a seizure at home for which she was hospitalised. On discharge the medical staff in the hospital informed the Complainant that she had epilepsy. She was prescribed anti-epileptic medication. She was referred to a neurologist for a specialised neurological assessment.

She contacted her line manager by phone to tell her what had happened and she then went on a period of certified sick leave which lasted until 6 May 2020.

On her return to work in May 2020 the Complainant was sent by her employer to Medmark, an Occupational Health Assessor, who was asked to determine whether her seizure in March 2020 was likely to be an explanation for her poor work performance in the period of time prior to her seizure. The Medmark report (dated 5 June 2020) answered this query in the negative and confirmed that there was nothing in her condition that would prevent her doing the tasks for which she was employed. From that point on, the Respondents sought to diminish or ignore the Complainant’s health condition.

On 17 June 2020 the Complainant was placed on a Performance Improvement Plan (hereafter referred to as a PIP) which, in accordance with the Respondent’s policy was supposed to last to 3 months. The process of the PIP was to improve and support the Complainant’s work performance. The PIP process was that weekly meetings would take place between the Complainant and her line manager, and then there would be two monthly review meetings and this process would culminate in a final, third PIP review meeting. The process was due to end in mid-September 2020.  If her performance had improved by mid September 2020, her employment would then hopefully continue on an improved basis but if her performance had not improved by mid-September 2020, she could face a disciplinary action for persistent poor work performance.

On the first PIP review meeting on 15 July 2020 the Complainant’s line manager noted that while her work performance with some tasks had improved, that there were still problems remaining, particularly in relation to the accuracy of the Complainant’s data inputting work.

On 29 July 2020 the Complainant was telephoned by a neurology clinic to say that there had been a cancellation and an assessment appointment had become available with her neurologist on 31 July 2020. She informed her line manager who was not agreeable because of the last-minute nature of the absence request. And while consent was eventually given by her line manager, the Complainant felt that this was a surprisingly unsupportive approach to her health condition.

On 31 July 2020 the Complainant forwarded the neurologist opinion to her employer which confirmed a diagnosis of epilepsy and confirmed that she was put on a different form of anti-epilepsy medication.

On 10 August 2020 the Respondent’s HR manager met the Complainant and stated that the Complainant’s performance improvement plan had not resulted in the improvement that had been hoped.

At that meeting the HR manager suggested that the Complainant resign her post because she was unable to do the tasks for which she had been employed and her options were either that she resign then before the PIP had concluded (in which case she would be paid two months’ notice) or that she await the outcome of the PIP process, after which was likely to be disciplined.

The Complainant’s second PIP review was due around this time in mid-August 2020 but following her meeting with the HR manager the Complainant became anxious, because it was now clear that she was no longer wanted by the Respondent. She attended her doctor and went on sick leave from 11-20 August 2020.

On her return to work she met with the HR manager and decided to tender her resignation in writing.

The Complainant contends that she was discriminated against directly, there was a failure to make reasonable accommodation for her disability, she was victimised and she was harassed because of her disability.

Since leaving her employment the Complainant has been successfully employed in another job and is now undergoing part-time education programme two nights a week.

She feels that is she had just been allowed time to adjust to the new diagnosis and the impact of the medication, if pressure to perform at work had been lessened even temporarily and if she had not been pressurised to resign,  that in time she would have adjusted to the requirements of the post but no such forbearance was given.

The Respondent contends that it did not discriminate against the Complainant. It contends that no prima facie case of discrimination had been made because there was a failure to prove facts from which discrimination may be presumed.

The Respondent’s line manager gave evidence to the Adjudication hearing as follows:

The Complainant completed her probation period successfully in December 2019, albeit with issues that needed future improvement.

In January 2020 she spoke to the Complainant about data input accuracy and other performance issues.

In February 2020 she met with the Complainant and went through a performance analysis document with the Complainant, which highlighted problems that had persisted since the conclusion of her probation period.

In March 2020 while she noted some improvement with the Complainant’s work she raised ongoing problems with the Complainant’s work that were persisting.

In mid-March due to the Covid pandemic the workers began to work from home and the line manager who worked within a team of three (the Complainant, a senior administrator and the line manager) ensured that the communication between members of the team was kept fluid and active, through the use of Microsoft Teams.

On 31 March 2020 the Complainant rang the witness to tell her that she had been hospitalised following a seizure and that she had suspected epilepsy following which a neurological assessment and MRI scans would be required.

The Complainant went on sick leave for 6 weeks and returned to work duties in early May 2020. On her return the witness understood that the Complainant had been referred by HR to the Respondent’s occupational health provider, Medmark, for a medical assessment. At that stage the Complainant had suspected albeit unconfirmed epilepsy. The witness understood that the Medmark opinion, which issued in early June 2020, stated that the Complainant’s health condition would not impact on her ability to perform her work duties.

From this point the Respondent determined that the Complainant’s health condition was not relevant to her work, because Medmark had so found.

As the Complainant’s ongoing poor work performance and inaccurate data inputting had not improved,  it was decided that the Complainant would be put on a Performance Improvement Plan (PIP) which would last 3 months. During this time the witness would supervise her work, would discuss her work every week and hold review meetings with her once per month. Following the PIP process (of three months) it was hoped that the Complainant’s work would have improved and if not it would then become a matter for HR to deal with in accordance with the Respondent’s disciplinary policy.

 The witness asserts that in the first monthly PIP review meeting (in July 2020) that while improvement in the Complainant’s work were noted there were significant failures to improve and these were specifically “trades being imputed incorrectly, chasing up on call backs, signatures being acquired and wrong figures in the spreadsheets.”

The witness denied being unsupportive to the Complainant’s request for time off to attend the neurology appointment. This permission was given and the Complainant attended the appointment.

Following the confirmation by the Complainant that her neurologist had diagnosed her with epilepsy (4 August 2020) the Complainant requested that her line manager put in place procedures in the workplace (as advised by Epilepsy Ireland) to ensure that if she suffered a seizure at work in the future that a fellow colleague would be trained to administer an oral anti-convulsant medication to the Complainant.

The Complainant went on sick leave from 11 August – 24 August 2020, which meant that the mid-August PIP review meeting could not take place.

Following her return to work on 24 August 2020 the witness set about organising a colleague (who would work in the office the days that the Complainant would) to ensure the anti-convulsant medication could be administered to the Complainant. Further to this on 2 September 2020 the witness emailed the Complainant to set up a meeting with this colleague, however she was informed by HR that the Complainant had resigned her post earlier that day.

The Complainant’s line manager accepted that by mid-August 2020 she had lost any faith that the Complainant’s work would improve and she accepts that she communicated this to the Respondent HR manager.

The Respondent HR manager then gave evidence at the Adjudication hearing as follows:

The Complainant started work with the Respondent on 1 July 2019 as an Administrator in the Private Client Department. Her probationary period until December 2019 was successful and she commenced her post-probation work in January 2020.

The witness was made aware in January 2020 from the Complainant’s line manager that the Complainant’s work performance was under par and that the errors she was making were serious.

The witness was made aware that discussions took place between the Complainant’s line manager and the Complainant about her work performance issues in February and March 2020, however to allow the Complainant settle into work post-probation period,  it was felt that time should be allowed before any PIP process should start.

However, the Complainant’s work performance continued to be under par during March 2020 and the support and supervision by the Complainant’s line manager and the Complainant did not result in any significant improvement. This was the situation that pertained up to the time when the Complainant was hospitalised in late March 2020 for a seizure.

Following her return to work in May 2020 the Complainant was sent by HR for a medical assessment by Medmark. The Medmark report stated (early June 2020) that there was nothing in the Complainant’s medical condition which should prevent her from completing her work duties in full.

Arising from this finding the issue of the Complainant’s under par work performance arose again and the Complainant was put on a PIP. This was due to conclude in September 2020 at which point it was hoped that the Complainant’s work performance would have shown signs of improvement.

However the Complainant’s work unfortunately did not improve and this created serious concerns for the Respondent. Numerical accuracy in data inputting was an essential aspect of the Complainant’s job. If she couldn’t do this, she really wasn’t suited to the role.

On 31 July 2020 following the Complainant’s neurological assessment, her suspected diagnosis of epilepsy was confirmed. This opinion was forwarded by the Complainant to the Respondent.

On 10 August 2020 the witness held a meeting with the Complainant. At that stage the witness knew that the Complainant’s work performance was not improving under the PIP process, which was two thirds of the way through. She and the Complainant’s line manager were of the view that she was unlikely to improve by the end of the PIP period and that, given her other issues, she felt that she should outline to the Complainant the options that would exist once the PIP came to an end, to allow the Complainant take stock and decide what she wanted to do. She explained that if there was a failure to improve under the PIP she would then enter a disciplinary process however an alternative option to this was that she resign. If she resigned the Respondent would pay her two months pay and allow her access to the Respondent’s careers advisory service.

Following this meeting the Complainant went on sick leave from 11 August until 20 August 2020 and on her return the Complainant furnished a letter of resignation to the HR manager.

The Respondent witnesses both stated that the Complainant did not raise any allegation of discrimination prior to issue of the WRC complaint.

The Respondent contends that no comparator has been identified by the Complainant and no prima facie case of discrimination has been made against the Respondent.

The test in discrimination cases in accordance with section 85A of the 1998 EEA is has the Complainant - on the balance of probabilities -  established facts from which it may be presumed that an act or acts of discrimination have occurred and if that primary test has been met, if the Respondent has proven the contrary.

The defence raised by the Respondent in this disability discrimination case is that the Complainant has not met the primary test of proving that she suffered a detriment as a result of her disability, albeit the Respondent accepts that the epilepsy constitutes a disability.

In addition to the claim of direct discrimination, the Complainant makes additional complaints of failure to make reasonable accommodation, victimisation and harassment.

Dealing with the last two forms of discrimination first, I am satisfied that the Complainant has not satisfied the tests, to show that she was harassed by the Respondent as a result of her disability or that she was victimised as a result of raising equality issues or for making an equality complaint, have been met. As the Complainant accepted that she did not raise an equality complaint prior to resigning her position, I do not find these two aspects of her complaint (harassment and victimisation) to be well founded.

I find that the evidence of the Complainant is only capable of being considered in the context of a direct discrimination claim and/or a failure to make reasonable accommodation, which I consider below.

Direct Discrimination

The complaint of discrimination arises alongside a context of poor work performance which pre-dated the Complainant’s seizure on 30 March 2020 and the subsequent diagnosis of epilepsy that she received on 31 July 2020.

The question to be determined is, did the Complainant suffer detriment? And if so, was this detriment occur as a result of her disability or was it due to other non-discriminatory reasons, which would include a response to poor work performance?

Was there a detriment?

There is no doubt that the Complainant’s line manager identified work performance issues with the Complainant prior to her seizure in March 2020 and prior to the diagnosis confirming epilepsy in July 2020 and because of this, raising work concerns with her in February and or March 2020 was a legitimate action and could not be said to have been connected to the Complainant’s disability.

The Complainant was not put on a PIP until June 2020. This took place after her return to work in May (following the seizure in March) but before the confirmation diagnosis in July 2020. I find that while the placing of the Complaint on a PIP in June 2020 is capable of constituting a detriment, I do not accept that this decision was, on the balance of probabilities, as a result of her disability. As the Medmark opinion, (June 2020) stated that her health condition (which was at that stage a seizure, suspected but unconfirmed epilepsy for which she was on medication) would not have prevented her performing her duties, I find - on the balance of probabilities  - that the decision to place her on a PIP in June 2020 was because she was under performing and this fact was recorded from February 2020 onward, if not before then and because Medmark had found that there was nothing arising from her then diagnosis that would have prevented her doing her work.

However, it was the operation of the PIP process following the Complainant’s diagnosis on 31 July 2020 that the Respondent’s dealings with the Complainant took on an unusual turn.

A PIP is there for a reason, it is to allow an employee to improve or be disciplined. In this case a month before the PIP had concluded the Complainant was invited to either resign her post or else face, what the HR manager described as, inevitable disciplinary action because of unmet targets of the PIP, despite that process having not yet concluded.

No explanation has been provided by the Respondent why the PIP was not permitted to take its ordinary course. The fact that this intervention (suggesting that she resign) took place ten days following confirmation of the Complainant’s epilepsy diagnosis is evidentially significant.

The Complainant’s line manager gave evidence that her view in mid-August 2020 was that the Complainant was not likely to improve by the time that the PIP concluded and this opinion was shared to the HR manager.  However the basis for the line manager’s pre-judgment, because that is essentially what it was, was not adequately explained.

The explanation for the intervention that was given by the Respondent HR manager (for suggesting on 10 August 2020 that the Complainant either resign or face disciplinary action) was that it was in the Complainant’s best interests that she not continue with the work.  That she was “a square peg in a round hole” (The Complainant’s words) that she didn’t seem to be capable of performing the essential feature of the job – to input data accurately - and that it might be better for her personally, given the challenges that she was presently having to deal with, if she resigned. It was an attempt to provide the Complainant with a choice other than her entering what was an inevitable disciplinary process.

In the absence for any other explanation for why the PIP process was interrupted and not permitted to conclude, I am of the view that it is likely that the Complainant’s diagnosis of epilepsy on 31 July 2020 significantly contributed to the view of the HR manager that it was in the Complainant’s best interests that she not progress the PIP to a conclusion but instead that she resign.

I do not doubt that the HR manager in her mind was attempting to help the Complainant however suggesting that she resign,  when the Complainant had no desire to leave her job was not the help that the Complainant needed.

If the Complainant did not have epilepsy, would the PIP have been allowed to conclude?

I consider that as that a PIP is a process that is initiated and managed by the Employer (its beginning, middle and end is managed by the Employer) and that process having been commenced by the Respondent, the reason that it was brought to a premature end, (“being in the Complainant’s interest because she had enough issues to deal with”)  is evidence that the Complainant’s health condition was a factor in the Respondent’s decision to suggest that she resign.

I am satisfied that a detriment occurred as a matter of fact. I find that this detriment was that the Respondent gave the Complainant an ultimatum of two options, leave voluntarily or face disciplinary action and both constituted a detriment. I am satisfied that but for the Complainant’s medical condition, the PIP would have continued and allowed to take its usual course.

I am satisfied that relying on a hypothetical comparator that the Complainant has discharged the onus of proving on the balance of probabilities that the detriment she suffered (to not get the full benefit of the PIP period but instead to decide between resignation or else face disciplinary action before the PIP had concluded) would not have occurred if she did not have a disability.

I find also that on receipt of the Complainant’s epilepsy condition being confirmed by  a neurologist on 31 July 2020 (The Respondent having denied at the Adjudication hearing that the suspected but unconfirmed epilepsy diagnosis between 30 March and 31 July 2020 constituted a disability) that the Respondent came under a pro-active duty to take steps, not to continue to treat the Complainant as if she was someone without a disability, because it was clear then that the Complainant had a disability and the Respondent had been informed of this.  The duty was then to treat her as a person with a disability. The diagnosis and the impact of her new medication should have been re-assessed by Medmark following confirmation the diagnosis. Not as a re-run the first question but in light of the epilepsy diagnosis (until that point the Respondent did not accept there was a diagnosis)  to ascertain, what were the Complainant’s needs which would have then allowed the Respondent to make an informed decision about whether her needs could be accommodated either in the post that she held or another role in the organisation.

The decision to continue the processing of her PIP, ignoring the impact that her diagnosed condition and or the new medication might have impacted on her ability to work, and this was a failure to take steps to ensure that she received reasonable accommodation for her condition.

However, as the Complainant accepts that she did not raise specific requests for reasonable accommodation (other than putting in place arrangements should she suffer a seizure at work) which her line manager did, albeit not until after her sick leave and after her resignation, I do not find that there was any specific failure by the Respondent to make reasonable accommodation. Rather I confine my finding to one of direct discrimination by failing to permit the Complainant to complete the PIP as would have usually occurred.

I am satisfied that discrimination on grounds of disability took place. I am satisfied that the Complainant would not have been asked to consider resigning her position on 10 August 2020 other than this was connected to the confirmation of her epilepsy condition, ten days earlier. I think that if epilepsy was taken out of the narrative, the Respondent would have permitted the PIP to conclude and following which she would have either shown improvement or if not then faced disciplinary action.

The failure to permit the PIP process to conclude, denied the Complainant the opportunity that any other employee without her health condition would have been entitled to, which may have resulted in her being disciplined, but alternatively it may not have.

If she had been given more time, more support, if she was allowed time to get used to the diagnosis and the effects of medication, perhaps her work would have improved. But by ending the PIP process prematurely - two months into an agreed three-month process - she wasn’t allowed the opportunity to improve that other employees would have received.

I find that the Complainant was discriminated against by the Respondent by direct discrimination.

I award compensation for the effect of discrimination in the sum of €20,000.00. I do this to reflect the impact that the discrimination had on the Complainant. The fact that this occurred during lockdown meant that the impact on the Complainant was great, not least because her ability to look for alternative work was hampered at this time. Although I note that the Complainant has got alternative work since and is undergoing an educational course.

The award of €20,000 also takes into account the conduct of the Respondent and to deter this conduct being repeated. It is regrettable that, following the seizure episode in March 2020 no-one asked the Complainant how she was feeling about her work demands or whether the continuation of the PIP post diagnosis in July 2020 was actually helping her to improve her work. She reported being tired during the PIP process and yet no one asked if she wanted to step back from the PIP process until she had come to terms with the the diagnosis and had got used to the medication. It is regrettable too that the Respondent’s response to the Complainant’s request for time off to attend a neurological appointment was not immediately positive and supportive, although I accept that the permission was ultimately provided.

I find that the Complainant was discriminated against by the Respondent by direct discrimination.

I award compensation for the effect of discrimination in the sum of €20,000.00

Disability Discrimination