FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : ACCESS IT CLG (REPRESENTED BY PENINSULA) - AND - MS KAREN MCCARTHY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S)ADJ-00016402 CA-00021244-001 The Complainant was employed by the Respondent as an IT trainer from 2011 to 2019. She informed her manager that she suffered from depression in or around June 2016, after which she alleges that her manager’s attitude to her changed. She alleges direct discrimination on grounds of disability. Her complaint to the Workplace Relations Commission, ‘WRC’, was lodged on 21 August 2018. The Respondent accepts that the Complainant had a disability at the time in question and disputes the complaint. At the outset of the hearing, the Complainant’s representative clarified that complaints of harassment and victimisation were not being pursued. Summary of Complainant arguments. In June 2016, the Complainant advised her manager, Ms. Mandy Dineen, that she suffered from depression, was on medication and sometimes found it difficult to focus. Ms. Dineen replied that ‘I usually have a bottle of wine’. In July 2018, in a written complaint, Ms. Dineen stated that the Complainant was using her disability to ‘go against me’ because the Complainant had forgotten to add a few dates to the diary and had not taken holidays when her manager wanted. She accused the Complainant of ‘constantly complaining’. The Complainant had complained when shouted at by a colleague and she had asked several times that two adults be present with children. She had previously used the Respondent anti bullying policy with regard to a colleague. The Complainant’s manager had told her that she was the only staff member who had problems with the rules. This led to negative comments by co-workers. The manager had also inferred at a staff meeting that staff could lose their jobs because the Complainant wanted consultation on contract changes. The Complainant’s manager told her that she did not think that her depression was anything related to work. In August 2016, the Complainant mailed that the work environment was toxic and in correspondence with Ms. Dineen clarified that she was not merely upset but had a diagnosed medical condition. In December 2016, the Complainant asked Ms. Dineen to let her colleagues know of her condition. The Complainant had difficulties with Ms. Dineen about her annual leave, a ‘snow day’, overtime and her contract. Her emails were often ignored. In July 2018, Ms. Dineen told the Complainant that she only had 4 hours in the classroom even though she was available to teach another lesson. She also reprimanded the Complainant for a student not coming in for a full hour, even though it was the student who suggested this. The Complainant was reprimanded for not charging for a class that was cancelled due to snow and for following a well established procedure, because she did not advise her manager. The Complainant felt continually questioned. She was pressurised regarding her annual leave. She was pressurised over her sick leave because she sent in emails due to the fact that she was unable to telephone. In November 2017, the Complainant invoked the Respondent’s Grievance Procedure. Her grievance was never processed. Eventually, she was called to a meeting that she was told was a mediation, at which matters addressed included aspects of her grievance. At the meeting, Ms. Dineen acknowledged that the grievance handling had been deficient, and she apologised. Agreement was reached on matters going forward. Ms. Dineen never complied with this. On 22 May 2018, the Complainant raised a formal grievance to the Board regarding her manager. She was invited to a meeting on 17 July 2018, at which she was handed a letter of complaint against her by Ms. Dineen. She was informed by Board member, Ms. Kinsella, that Mr. Lars Asmussen B. L. was being appointed to hear both complaints. However, Mr. Asmussen only ever investigated Ms. Dineen’s complaint. In Ms. Dineen’s complaint, she refers on several occasions to the Complainant’s medical condition ,which caused the Complainant to understand that she was being treated inappropriately due to her condition. This prompted her complaint to the WRC. Prior to revealing her disability, the Complainant had a good relationship with her manager. There were no reasonable adjustments made for the Complainant’s disability. Instead of offering support, her manager made a complaint against the Complainant. In A Prison Officer v. The Minister for Justice, Equality and Law Reform, DEC-E2007-025, the employee was awarded €8000 for discrimination against her due to her depression and anxiety. The Complainant has met the ‘prima facie’ test of s.85A of the Acts and has met the standards for the application of this test as determined in Mitchell v Southern Health Board (2001) ELR 201 and in Portroe Stevedores v Nevins (2005) ELR282. The Complainant’s disability falls into the definition of disability in s. 2 of the Acts. The Comparator is a hypothetical fellow worker who does not have a disability. The Respondent failed in its obligation to investigate the nature and extent of the Complainant’s disability and did not take appropriate measures to enable the Complainant to have access, to participate or to advance in her employment. Summary of Respondent arguments. The complaint under the Acts is outside the 6 month limit in the Acts and is statute barred as per s. 77(5). The six month reckonable period is 21 February to 21 August 2018. No acts of discrimination occurred in that time that would allow account to be taken of any acts outside of that period, see County Cork VEC v Ann Hurley (EDA 1124). The Respondent accepts that the Complainant advised of her depression in or around 2016. She was on sick leave from January to November 2017. Originally, she received a fitness to work cert. in July 2017 and a back to work interview was held but two days prior to her due return, the Complainant advised of a relapse due to her interview and further sick certs were submitted up to November. Prior to her return, the Respondent held a lengthy consultation process with the Complainant to support and assist her in returning to work. Concessions were made to allow her to use annual leave for a staged return, weekly meetings with her manager ,additional breaks to get some air, being allowed to take personal calls/emails and a change in seating arrangements. Unfortunately, it became clear that the Complainant was using every opportunity to undermine and belittle the workplace and to target her manager personally for dealing with her work performance and attitude. The manager, Ms. Dineen , herself, raised a grievance with the Board in March 2018, which was sent to the Complainant in July 2018, regarding what she felt was harassment by the Complainant. There was no malice in this complaint, the manager was within her rights to make it and was obliged to do so in respect of workplace matters. This sparked a grievance by the Complainant. Both grievances were investigated externally. Part of the complaint under appeal is that the Respondent failed to meet its obligations under s.16 of the Acts to take appropriate measures to enable the Complainant to undertake her duties. The Respondent engaged at length with the Complainant and made concessions to accommodate her disability. It is notable that in her letter of grievance of 22 May 2018, the Complainant makes no reference to any failure to provide reasonable accommodation. A medical report was sought and necessary concessions were made. No ‘prima facie’ case has been made out. The Complainant has not discharged the initial probative burden required of her to raise a presumption of discrimination, as per s.85A of the Acts. The Court is referred to the Court’s own determination in Melbury Developments v. Arthur Valpetters (EDA0917) which held that ‘..the Complainant must first establish facts from which discrimination can be inferred.’ and ‘Mere speculation or assertions, unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’. The Respondent never treated the Complainant less favourably than another employee during the cognisable period. The Respondent simply addressed workplace matters and issues of competency and conduct, including in relation to overtime, contract and funding, annual leave requests and further training. None of the issues that arose are attributable to the Complainant’s disability and do not constitute ‘less favourable treatment’ within the meaning of s.6 of the Acts. The onus of proof that this is otherwise rests with the Complainant. The Complainant is required to show that she was treated differently due to her disability but she has failed to identify any comparator. As per A Technology Company v A Worker (EDA0714), the connection between discriminatory grounds and alleged discriminatory acts is satisfied only from objective facts that infer discrimination. All interactions and communications from the Respondent to the Complainant were dignified, respectful and professional and were deemed necessary for the proper running of the business. The Complainant was never treated unfairly. Witness evidence. Ms. Karen McCarthy Ms. McCarthy is the Complainant. The witness said that she felt her disability was not taken seriously from the moment she told Ms. Dineen, who had responded by referring to taking a bottle of wine. The witness was out sick for 11 months in 2017. She had been ready to return in July but suffered a setback due to the back to work interview at which it became clear that there would be no accommodations made for her disability, she was returning to a full schedule and would be required to give classes in other premises. At her second back to work interview, the witness raised her disability and referred to her forgetfulness as she needed time to process. She sought a physical move to a different chair, weekly meetings with her manager, the freedom to go out to take breaks and time to process information. These were agreed but not all were implemented. While her chair was moved, it was made subject to the agreement of the work colleague with whom she swapped and was only accommodated when that colleague agreed. There were not weekly meetings with her manager and she was made to feel like a nuisance. In the November to January period, only two meetings occurred. She was given time to go out but never given the time needed to process. The witness asked for advanced training. She was facilitated with the first module but her manager had told her they would look at the remaining training further down the line. It took three weeks and she had still not done the necessary test but, in that time, another colleague was facilitated although that colleague was leaving the employment. In March 2018, the witness had sought to teach adults and was told that she could in the future but that never happened while a new employee was given the task in June. In March 2018, the witness, through forgetfulness, left a list of suggested improvements for the company on a printer. Her manager accused her of having done so deliberately. When the witness forgot to write in a class and to sign in a payment, her manager complained that she had done so just to annoy the manager. In May 2018, the witness raised a grievance. That was never investigated. When she went to a meeting in July, she discovered that her manager had raised a grievance against her previously, of which she was not aware. Her manager’s grievance was processed. Her grievance was not. She then lodged her complaint with the WRC. The witness was stunned that her manager had written to the board in an attempt to get rid of her. Under cross examination, the witness, when asked to confirm that she had been permitted to return to work on a phased basis in order to accommodate her, replied that she had used her leave to do so. The witness could not remember if she had ever been prevented from bringing her union representative to meetings with management. When asked what accommodations sought by her had not been forthcoming, the witness said that she did not expect to be given out to for her forgetfulness such as leaving something on a printer. The witness said that her relationship with her manager prior to her disability was fine. The witness accepted that she had been told that the delay in completing her further training was based on financial considerations. She did not know if others were affected but knew of a colleague who was accommodated despite having given her notice. When asked how any of Ms. Dineen’s complaints about the witness’ behaviour related to her disability, the witness said that none were found to be based on fact and that Ms. Dineen wanted her out because of her disability. The witness did not accept that it was her performance that was being questioned. The witness said that she did not raise any complaint about her classes in her back to work meeting as she saw no point. She said that she was required to engage back and forth regarding her contract despite her employer knowing that she was depressed. She did not know if the contract issue affected others but that nobody else was seeking a Contract of Indefinite Duration. The witness said that she was pressured to telephone when she was out sick despite previously being able to text in, she was not physically able to telephone and had sought to be able to email. Ms. Mandy Dineen Ms. Dineen was the Complainant’s manager. The witness said that the reference to a bottle of wine related to a discussion regarding various problems being faced by the Complainant before she told the witness that she had depression. The witness said that when the Complainant returned from sick leave, the witness had accommodated her with a phased return. She had been required to consult the relevant colleague about swapping places with the Complainant but this had occurred. The witness had facilitated extra breaks for the Complainant. The various issues raised by the Complainant after her return were normal, ongoing work issues unrelated to a disability. With regard to the extra training sought, the delay was due to budget concerns but she had assured the Complainant that she would be facilitated later. The witness said that at an earlier stage she had promised to accommodate another staff member with the training and she did so. With regard to the matter of accommodating the Complainant with her previous classes on her return, the witness said that she had tried to minimise disruption when doing the allocation. She could not understand the suggestion that the Complainant had relapsed due to the back to work interview at which the Complainant seemed fine. As a result, when the Complainant next indicated an intention to return, the witness had sent her for medical assessment. The witness said that her relationship with the Complainant after her return was one where she felt that if she said ‘black’ the Complainant would say ‘white’. The Complainant was constantly raising issues and complaints about the witness and giving out about her. It was very difficult for the witness and she felt it necessary in March 2018 to raise a grievance against the Complainant because of her behaviour. Included in this grievance was the document left on the printer. The complaint was not that the document was left there, in itself, but, rather, that it was so personally critical of the witness and it was left in a public place. The witness was told by the Board that her grievance and that of the Complainant would be taken together. The witness also had concerns that the Complainant was not doing her expected duties. Under cross examination, the witness chose not to answer a question regarding her qualifications. The witness said that she had not been asked to take any measures when the Complainant advised her of her depression but that she did ask others to afford space to the Complainant. The witness said that she had an idea about how to deal with staff who had a disability. She said that she took the situation seriously and had facilitated the Complainant’s requests. The witness agreed that she was the support person for the Complainant. She had agreed to meet the Complainant regularly but found that at each meeting the Complainant had a lengthy list of complaints rather than any wish to discuss her disability needs. The witness said that, in addition to the agreed measures, she facilitated the Complainant with hours here and there. With regard to one of the complaints made by the witness, she said that the Complainant had been facilitated with going out for breaks but not to do so in order to be gossiping about the witness, which is what had happened. The witness said that the Board had handled the matter of the two grievances without her input, which was appropriate. With regard to the training issue, the witness said that it was simply a matter that her budget was used up. She had made a promise to another staff member already and had kept her word. The staff member concerned was leaving to take up full time employment and it was the job of the witness to facilitate people into full time employment. The witness could not remember if any other staff member was in the same position. She denied that she had stopped the Complainant because of her disability. In response to questions from the Court, the witness said that she had managed two other staff with disabilities. Her only training had been one day’s training by a HR company on the Respondent’s handbook. The witness said that at the time in question, she received complaints, grievances, issues from the Complainant nearly every other day. The applicable law Employment Equality Acts 1998-2015 Discrimination for the purposes of this Act. 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— (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”), 16. (3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer. (b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability— (i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training, unless the measures would impose a disproportionate burden on the employer. (c) In determining whether the measures would impose such a burden account shall be taken, in particular, of— (i) the financial and other costs entailed, (ii) the scale and financial resources of the employer’s business, and (iii) the possibility of obtaining public funding or other assistance. (4) Insubsection (3)— ‘appropriate measures’, in relation to a person with a disability— (a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned, (b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but (c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself; Burden of proof. 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. (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant. Deliberation. The Respondent in this case does not dispute the existence of a disability. The Respondent raises an argument that the complaint is statute barred. However, they go on to point out that the law on this matter is that complaints in respect of alleged discrimination outside of the six month cognisable period may be taken into account if it is found that during the cognisable period an act of discrimination occurred. In that case, it is open to the Court to consider if acts prior to the cognisable period are part of a continuum of discriminatory behaviour, which might, in such circumstances, be regarded as breaches of the Acts. That is a correct explanation of the law. Accordingly, the Court must first determine if any discriminatory acts occurred during the cognisable period. The first test to be applied by the Court is to ascertain if there are facts that can give rise to an inference of discrimination in the cognisable period, which is 22 February 2018 to 21 August 2018. While there was some vagueness by both parties on precise dates on specific allegations, it appears that the complaint is based on two sets of alleged circumstances. Firstly, that the Respondent failed to make accommodations, as required by s.16 of the Acts, for the Complainant’s disability. Secondly, that the Complainant’s manager treated the Complainant less favourably than she would have treated a hypothetical work colleague who did not have disability. With regard to the first set of alleged circumstances, it is accepted by the Complainant that of the measures agreed with her, she was accommodated by being moved to a different physical location and she was accommodated with taking breaks outside. She argues that a commitment to weekly meetings was not met and that no accommodation was afforded for her forgetfulness. In response, the Respondent argues that weekly meetings turned into sessions of excessive complaining, unrelated to the Complainant’s disability, that the Complainant was accommodated with breaks and that the complaint against the Complainant related to her behaviour. Likewise, the complaint about material being left on the printer related to the contents and what was perceived as a deliberate act designed to embarrass Ms. Dineen rather than being related to forgetfulness. It is contended also that the Complainant was accommodated with a staggered return to work and informal arrangements regarding attendance. Having heard evidence and submissions, the Court accepts that the Respondent did set out to accommodate the requests of the Complainant to enable her to return to, and remain in, the workplace and that nothing about the Respondent’s response to the Complainant’s requests for accommodation suggest ‘prima facie’ evidence of discrimination. With regard to the inter-actions between the Complainant and her manager, it is evident that there was mutual mistrust and poor relations. It is a fact that the Complainant had a disability. However, it is for the Complainant to establish that there is ‘prima facie’ evidence that any alleged mistreatment arose because of the Complainant’s disability and would not have arisen, or did not arise, in the same circumstances with a person who did not have a disability. As noted in A Technology Company v. A Worker (EDA0714) the Court has to be satisfied that there are objective facts that infer discrimination. This requires more than showing that a person alleging discrimination meets one of the nine grounds and that their employer did something that they found unpleasant. It requires facts from which it can be inferred that any alleged poor behaviour by an employer is related to the fact that the employee is covered by one of the nine grounds. As the Court noted in Melbury Developments v Arthur Valpetters (EDA0917) it is for the Complainant to establish facts from which discrimination may be inferred. In the instant case, before the Court would consider allegations that the Respondent treated the Complainant badly, the question that the Court must ask is even if it established that any or all of the allegations made by the Complainant about her manager were true and had occurred in the cognisable period, would that be enough to determine that there was an inference of discrimination? In this regard, it is self-evident that there was mutual hostility between the Complainant and her manager and both had, as they are entitled to do, sought to pursue a grievance against the other. It is indisputable, therefore, that the Complainant had grievances and, indeed, that the Complainant’s sense of grievance is justifiably enhanced by the apparent non handling of her grievance. However, it is not clear to the Court that even if these grievances were established to be well founded, (and the Court offers no view on that), whether any or all of them provide a basis for inferring that they arose because the Complainant has a disability. Likewise, poor administration by the Board rather than discrimination seems to have caused the failure to process the Complainant’s grievance. Nothing put to the Court gave rise to any inference that the matters complained of were in any way linked to the fact that the Complainant has a disability. In this regard, the Court pressed the Complainant and her representative and the latter made an eloquent, well constructed argument about the co-incidences of timing in the deterioration in the relationship and the disclosure of a disability. However, the fact that grievances are raised after an employee is diagnosed with a disability does not necessarily indicate an automatic association between the two. A further argument that the Complainant’s manager made reference to what, she alleged, was the Complainant using her disability ‘to go against her’ really proves nothing, other than it expresses a view of the Complainant’s manager, which even it was to be established as inappropriate,( about which the Court makes no judgement), would not establish any linkage from which discrimination could be inferred. In short, it appears to the Court that the correct course for the Complainant would have been to insist that her grievance be processed. S. 85A of the Acts is clear in its intent. The burden to establish facts from which discrimination might be inferred rests with the Complainant. The Court is satisfied that this burden has not been met and that the Complainant’s appeal must fail. Determination. The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
