Complainant

Respondent

Parties

John  Holland

Courts Service

Representatives

Represented by Cliona Kimber SC, instructed by Byrne Wallace Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00041348-001

01/12/2020

The complainant states that he commenced employment with the respondent as a clerical officer on 18 March 2020. The complainant states that he has Crohn’s disease and is immunosuppressed. He alleges that he was sent home by SD his line manager and JD (manager of the section) and told to send in a letter confirming his lifelong immunosuppression. The complainant states that he was told he could not work from home and that he may be redeployed. He alleges that it was said to him “we’ll see what happens but sure at least you’re in now”. The complainant states that he sent in the letter from the GP to the respondent. He states that he received general emails from the Civil Service and Peoplepoint. The complainant states that he had no contact from the respondent until 15 May 2020. He states that he received a letter alleging “breach of contract” detailing four instances of “attempted” contact on their part, two calls and two emails from SD. In this regard, the complainant states that he had missed calls but no voicemails. The complainant alleges that SD lied and said he did not have a voicemail service; the complainant states that he has a letter from his service provider stating that it has always been active. The complainant states that SD lied as she said she emailed the complainant twice. The complainant states that he had emailed SD the doctor’s letter and never received the other two emails. The complainant states that he presumes SD sent them to his work email address which she knew he couldn’t access outside of work. The complainant states that the respondent engineered a situation to get rid of him because he could not attend work due to the Covid pandemic.

The complainant contends that he asked three times at separate hearings to find out what email address she had contacted. The complainant said he was told the matter would be looked into but it never was. The complainant states that the respondent stopped paying him after 6 weeks on the date the letter arrived at his house detailing his alleged breach of contract. The complainant states that at this juncture he was represented by his Union representative JC who told him that the respondent was clearly trying to “railroad” the complainant out of there. The complainant asserts that it came down to a final disciplinary hearing and he states he had no doubt that he was going to be sacked. The complainant states that the person charged with making an objective decision was JD. The complainant states that the advice given to him by his union representative was take the sacking, appeal and likely win or resign and take another Civil Service offer that he had just received. The complainant states that if he was sacked he could not take up that position as they would require a reference.

The complainant states that he was forced to resign. The complainant alleges that Head of HR, DC together with her colleague ED were complicit in the treatment of him. The complainant states that the respondent made no efforts to accommodate his needs in the workplace as requested by his GP. He states that the respondent made no attempts to relocate him, they stopped paying him, victimised him and forced him out.  The complainant states that he did what was requested of him; he provided a GP letter and a consultant’s letter to prove that he has a life long condition, not letters to state he was currently ill  and not with a doctor’s cert. The complainant asserts that it was a suggestion that 30 days would be more than enough time to come up with a workaround. The complainant states that under regulations, GP’s can only provide letters for a 30 day period. The complainant states that he presumed the doctors letters were for an indefinite period similar to the consultant’s letter until it was safe for him to return to work according to HSE guidelines or medical advice. The complainant submits that providing a second letter 30 days later would have repeated what the first letter set out. He states that the 30 days is for the occupational health department to come up with a solution to the issue that he has to work in isolation, not in a socially distanced  office.  The complainant states that as he was told he could not work from home then he was expecting to be relocated. The complainant states that he felt that he had fulfilled everything that was asked of him and waited at home in isolation until his employer decided on a course of action to carry out their duty of care  for the complainant’s safety in the workplace or relocation or whatever action they deemed appropriate. The complainant states that he waited patiently but there was no contact from his employer. He states that weeks later he received a letter from ED asserting that the complainant could not be contacted including refusal to reply to emails. When the complainant states that the fact is a list of failed attempts to contact the complainant not the complainant’s refusal to maintain contact. The complainant states that it begs the question as to why he was not contacted by post. The complainant states he had documents posted to him previously. The complainant states that post was then apparently a perfectly suitable option to communicate to him that there was a disciplinary procedure afoot. The complainant reiterates that if he had received contact by post he would not be in the situation he now finds himself in. The complainant states that when he received the letter from ED he contacted his doctor for another letter which he forwarded to ED.  The complainant states that in relation to the disciplinary interview which was held and the minutes of same, the respondent omitted substantial information in his favour which was not put into the minutes.      

In conclusion, the complainant states that the respondent engineered an unwarranted disciplinary action with the goal of unfairly dismissing him due to his disability and the fact that during the pandemic, he was unable to work in the office. The complainant further alleges there was a failure on the part of the respondent to provide him with reasonable accommodation.

Testimony of TC (Union Representative)

TC stated that the complainant requested representation from the Union and TC was his representative.TC stated that he attended a disciplinary meeting with the complainant. He further stated that he had no recollection of saying “they are trying to railroad you out of there”. He stated it was not the type of conversation that took place. He stated that he gave the complainant the options and it was up to the complaint to decide what course of action to take. TC stated based on his experience, in fact, he found that the respondent was one of the more reasonable and accommodating departments that the Union dealt with. TC stated that the complainant had said to him that he was contemplating resigning as he was placed high on a separate panel. TC stated that he was aware at that juncture panels were moving very quickly in the Dublin region.

The respondent states that the complainant was employed as a clerical officer from 18 March 2020 to 8 July 2020, on which date, the complainant resigned. The respondent states that on 1 December 2020, the complainant submitted an application for adjudication to the Workplace Relations Commission under the Employment Equality Acts 1998-2015. The complainant alleges on his complaint form that he was victimised and discriminated against on the ground of disability by the respondent due to the respondent’s failure to provide reasonable accommodation. He asserts the most recent date of discrimination was on 30 June 2020. The respondent rejects the assertion that it has failed to provide the complainant with reasonable accommodation, or that it discriminated against or victimised the complainant in any way during his employment. The respondent asserts that it has at all times acted lawfully, reasonably and respectfully in relation to the complainant.

BACKGROUND

The respondent states that on 18 March 2020, the complainant commenced employment with it as a clerical officer. As part of the complainant’s contract of employment, he was provided with a copy of a number of the respondent’s policies, including in particular the Sick Leave Policy, Circular 5/2018 (the “Sick Leave Policy”), the Civil Service Code of Standards and Behaviour, Circular 26/2004. The respondent states that the complainant returned a signed form acknowledging that he had received copies of the relevant policies and that he had read and understood same prior to commencing employment. It was submitted that on 12 March 2020, the Government issued advice to all civil/public employees to work from home where possible. The complainant presented to his line manager SD and the office manager JD on 18 March 2020. The complainant advised that he was immunosuppressed and that he would not be able to work in the office. JD asked the complainant whether he had notified anyone in the office of this previously. The complainant advised that he had not. JD contacted HR to confirm how he should proceed in the circumstances.

The respondent states that in line with advice from HR and DPER Guidance of 13 March 2020, to ensure the complainant’s health and safety, JD confirmed that the complainant would not be able to work in the office. JD advised the complainant to furnish them with a medical certificate, and that they would be in touch with next steps. As the complainant had only commenced employment on 18 March 2020, and had not received the required training to work from home, it was not possible to assign him duties which he could perform remotely. It was submitted that on 25 March 2020, the complainant emailed two medical certificates to his line manager dated 19 March 2020. The first medical certificate was from Tallaght University Hospital, which advised that the complainant was diagnosed with inflammatory bowel disease and that he was receiving immunosuppressant therapy for his illness. By nature of this illness and treatment, the complainant was deemed part of an at risk group as per HSE Guidelines issued in early March 2020. The second medical certificate was from his GP advising that it is not safe if the complainant were to work in a non-isolated environment, and that he does not come into work for a month from the date of the certificate and that the issue would be discussed with occupational health to consider a long term resolution.

The respondent states that on 27 March 2020, the complainant’s line manager emailed the complainant to arrange for the complainant to be placed on Covid-19 Special Leave with pay. The complainant’s line manager, SD, emailed the complainant on 22 April and 30 April 2020 but it was later discovered that those emails were mistakenly sent to the complainant’s work email address, rather than his personal email address, and therefore, he was unable to access these. Notwithstanding this administrative error, these emails demonstrate legitimate attempts made on behalf of the respondent to engage with the complainant.  In the email sent to the complainant on 22 April 2020, the complainant’s line manager requested that the complainant contact her or confirm an appropriate time for her to contact him. On 30 April 2020, the complainant’s line manager called the complainant on the mobile number provided twice, just after 11am. She advised that there was no answer and no option to leave voicemail as the phone rang out.

The respondent asserts that on 30 April 2020, the complainant’s line manager emailed the complainant advising him that his medical certificate had expired and to contact her regarding same. The complainant would have been aware of expiry of his medical certificate within one month of 19 March 2020 but he did not send an updated certificate to the respondent. On 06 May 2020, the complainant’s line manager phoned the complainant but there was no answer or option to leave a voicemail. As there had not been any contact from the complainant since 27 March 2020, the Head of Human Resources, DC wrote to the complainant by letter dated 13 May 2020 summarising the above events to date and outlining the complainant’s failure to comply with his obligations under the Sick Leave Circular and the Code. In particular, under the Sick Leave Policy, the complainant had failed to “maintain regular contact with the employing organisation during periods of sick leave.” In respect of the Code, that the complainant did not comply with the requirement “to attend at work as required and not to absent themselves from duty without proper authorisation; to comply with the terms of the sick leave regulations.” The complainant was advised as he had not resumed duty following the expiration of his medical certificate, his absence may be considered unauthorised unpaid absence and may lead to invocation of the disciplinary process as per the Civil Service Disciplinary Code which states “serious unauthorised absence may be considered serious misconduct.” This letter further instructed the complainant to contact ED (Employee Relations Manager, HR) once in receipt of same.

The respondent states that the complainant emailed ED on 15 May 2020 to confirm he had received his letter. It was submitted that on 15 May 2020, ED and the complainant spoke over the phone. ED advised the complainant he had not made contact with the respondent since 27 March 2020. ED advised the complainant it was his responsibility to maintain contact with his manager and to submit medical certification. Notwithstanding the complainant’s previous employment in the civil service, the complainant stated that he was not aware of this responsibility. ED reminded the complainant of the Civil Service Code of Behaviour and sick leave documents he received on accepting his post, which set out these requirements. The complainant refused to accept that he had an obligation to contact the respondent and stated that he was following government guidelines. ED advised that no contact had been made with the respondent since 27 March 2020 (over 7 weeks since he had last contacted the respondent) and that no up to date medical certificate had been provided to the respondent for over a month. ED asked the complainant if he thought this was acceptable. The complainant again refused to accept that he had a duty to remain in contact with his employer during this period of time. ED advised the complainant his case would be reviewed, and HR would be in touch in due course.

It was submitted that on 15 May 2020, the complainant emailed ED a further medical certificate from his GP dated 15 May 2020. This certificate recommended that the complainant stay out of the office for a month. It did not account for the complainant’s absence since 27 April to 15 May 2020. A letter dated 27 May 2020 was issued to the complainant, inviting him to a meeting with DC on 3 June 2020 to discuss the complainant’s failure to provide up to date medical certificates or to keep in contact with the complainant’s line manager, contrary to the Sick Leave Policy and the Code. A telephone meeting was held on 3 June 2020 between the complainant, DC and ED, which provided the complainant with an opportunity to put forward his side of the story. DC explained the contents of the letter dated 27 May 2020 sent to the complainant. This set out the complainant’s failure to provide authorisation for his absence contrary to the Code of Behaviour, and his failure to maintain regular contact with the respondent while absent. DC asked the complainant to provide his side of the story. The complainant confirmed that he made no contact with the respondent, however he did not accept this was his wrongdoing, and instead maintained that he was not required to do so due to his medical condition. When reminded again of his obligation to maintain contact with the respondent and provide up to date medical certificates, the complainant stated “that is one way of looking at it”. The respondent asserts that there was no acknowledgement by the complainant of his obligations under the respondent’s policies or that he had failed to comply with same. DC advised that his case would be reviewed under the Disciplinary Code 19/2016 and if found in breach of the code could lead to sanction up to and including dismissal.

The respondent asserts that the complainant emailed DC on 15 June 2020, confirming in writing a number of the points raised at the meeting on 30 June 2020. The complainant outlined his version of events since he commenced employment. The respondent submits that notwithstanding the meetings and correspondence between the parties, the complainant did not acknowledge his failure to keep in contact with the respondent or provide an up to date medical certificate. It was submitted that a letter was sent to the complainant dated 22 June 2020 confirming what was discussed at the meeting on 3 June 2020, in particular, that the complainant: - Did not attend work for a period from 19 March 2020 to 14 May 2020, - Did not contact his office manager or HR from 27 March 2020 to 14 May 2020 - Did not provide medical certification after the initial one month notification received 27 March 2020.  The respondent states that this merited invoking the Civil Service Disciplinary Procedures for new entrant civil servants Circular 4/2019. The complainant was invited to a disciplinary meeting with JD along with his trade union representative, on 26 June 2020, in order to give him an opportunity to respond to any concerns raised including to respond to the allegations raised, under the Sick Leave policy and the Code, as follows: “The Code states: 10. Attendance and performance Civil servants are required: • to attend at work as required and not to absent themselves from duty without proper authorisation; • to comply with the terms of the sick leave regulations; and under Circular 5/2018, Arrangements for Paid Sick leave Part 2.2 Civil Servants’ Responsibilities Civil servants are obliged to provide regular and effective service and have a responsibility for managing their own sick leave and in particular adherence to the Sick Leave Regulations. They must understand that they need to: • Be familiar and comply with the Sick Leave Regulations and policy; • Maintain regular contact with the employing organisation during periods of sick absence; • Take all reasonable measures, where possible, to manage their own health and well-being with a view to returning to full health. In considering the allegations above and having regard for what constitutes serious misconduct, these allegations may fit the definition of serious misconduct as detailed below: “misconduct which is sufficiently serious to warrant dismissal or other serious sanction. It is a serious breach of the Civil Service rules and procedures, or of recognised and accepted standards and behaviour which results in a breakdown of the relationship of trust and confidence between the Department or Office and the civil servant”. Examples of serious misconduct include but are not limited to: • Failure to comply with Civil Service Policies, Codes of Practice, Circulars etc; • Serious unauthorised absence; • Serious non-compliance with sick leave regulations”.

The respondent states that on 30 June 2020, a disciplinary interview was scheduled between the complainant and his union representative, TC, JD (Chair of the meeting) and ED (as note taker). The respondent states that the complainant was afforded the opportunity to respond to the allegations. The respondent contends that when asked to explain why he did not contact his manager, the complainant maintained that “it was up to [the] Courts to contact me.” The respondent submits that the complainant did not acknowledge any obligation to contact the respondent as per DPER policies, despite the fact that 7 weeks had elapsed since he was last in contact with his manager. When JD asked the complainant to explain why no further medical certificates were submitted when his first medical certificate expired, he stated that he did not realise that he required a certificate. This is notwithstanding the fact that the medical certificate that the complainant sent to the respondent had an expiration date of one month. The respondent maintains that when concluding this meeting, JD stated that the notes of the meeting would be circulated for sign off and that once they were all agreed JD would review the notes, the evidence and any documents provided. In this regard, the complainant states in his submission: “…ED took minutes at the meeting – they omit huge swathes of information in my favour. I also have the minutes as amended by Forsa detailing the gaping omissions.”  The respondent states that no evidence has been provided by the complainant to support the allegation that the respondent omitted information in the minutes. As outlined by JD at the end of the meeting, minutes of the meeting were emailed to the complainant on 30 June 2020, for review. The respondent states notwithstanding the opportunity presented to the complainant to put forward his version of events and further documents, no response was received by the respondent from either the complainant or his representative which sought to amend these minutes or add any further comments. The respondent states that before it had an opportunity to come to a decision on the matter, the complainant emailed DC on 8 July 2020 confirming his resignation. Accordingly, the complainant’s last day of employment was recorded as 10 July 2020.

DISCRIMINATION

The respondent strongly rejects the assertion that it discriminated against the complainant on any basis including on the ground of disability. It is not the case that the respondent “engineered a situation to get rid” of the complainant. The respondent submits that to the contrary it acted in the complainant’s best interests at all times during his employment, and as set out below, made a number of attempts to engage with the complainant to accommodate his return to the office.

The respondent states that Section 6(1) of the Employment Equality Acts provides that: “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 ’ )…”  Subsection 2 sets out the discriminatory grounds as between any two persons, which include the following: “(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”)”.

The respondent asserts that Section 85A(1) of the Acts provides as follows: “(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.”  In order to demonstrate that the complainant has received less favourable treatment and that the less favourable treatment arose from his disability, the complainant must first establish a prima facie case of discrimination. Prima facie evidence has been held in the Labour Court in the Rotunda Hospital v. Gleeson [DDE003/2000] to be: "Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred."  The respondent notes that this requires that a claimant has to not only establish the primary facts upon which he will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA21/2008, the Labour Court commented that; "The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts." In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court warned that "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 states that the complainant’s complaint form sets out a vast number of disparate allegations (all of which are denied) in respect of the alleged conduct of the respondent. For example, as stated above, the complainant alleges that SD “engineered a situation to get rid” of the complainant and that SD lied to the complainant. The respondent asserts that at no point in his submission has the complainant demonstrated or explained, beyond mere speculation or assertions, how any of this alleged conduct was based on any of the grounds of discrimination.  The respondent states that the complainant asserts the last date of discrimination was on 30 June 2020. This was the date that the complainant attended a disciplinary hearing with the respondent regarding the allegations set out above. The respondent does not accept the implication that the initiation of the Disciplinary Procedure was discriminatory: (i) The complainant has failed to highlight facts which establish that the complainant was discriminated against on this date. (ii) The respondent maintains that it was entitled to initiate its Disciplinary Procedure in accordance with the complainant’s alleged breach of the Sick Leave Policy, the Civil Service Code of Standards and Behaviour and the Courts Service Guidance on Absence during COVID-19 Policy, which detailed employees’ obligations under Special Leave Circular 2/1976, each of which were furnished to the complainant. The respondent has an obligation to enforce such policies in accordance with the terms stated therein and does not accept adherence to such policies in the circumstances could constitute discriminatory treatment.  (iii) The Disciplinary process complied with the principles of fair procedures and natural justice. Moreover, no sanction was imposed against the complainant at any stage during his employment or at the hearing. The complainant resigned before the respondent made its decision. The complainant was not subject to discrimination as a result of the initiating the disciplinary process.

It was submitted that the complainant states in his complaint form: “The person charged with making an ‘objective decision’ was none other than JD mentioned earlier. One of the two who told me to go home and send in a letter. Talk about stacking the deck against someone...” [sic] The respondent states that while the complainant does not explain how the appointment of JD to conduct the disciplinary meeting on 30 June 2020 would have interfered with his ability to make an objective decision, the respondent wholly rejects this assertion. The respondent states that it is at a loss to understand how the appointment of JD would have undermined the objectivity of the disciplinary process or any decision stemming from that process, both in terms of actual or objective bias, based on the fact that JD and the complainant met on 18 March 2020. Furthermore, it should be noted that no objection was raised by the complainant or his union representative, when he was initially notified of JD’s appointment by letter dated 22 June 2020 nor did they raise an issue prior to or at the meeting on 30 June 2020. The respondent denies any allegation of discrimination, and maintains that it managed the complainant appropriately throughout his employment. As set out in the Code, civil servants performance are assessed based on a number of objective criteria including in particular: (a) confirmation that work has been performed to a satisfactory standard; (b) attendance, including punctuality, is satisfactory; and (c) conduct and behaviour are of the required standard. Where an employee fails to adhere to these requirements, the respondent has a duty in accordance with the Code to address this under its Disciplinary Procedure as appropriate. It was submitted that the complainant failed to raise any such complaint with the respondent during his employment, and the respondent was not made aware of any such allegations during the complainant’s employment. At all times, the complainant was treated reasonably, respectfully and in a non–discriminatory manner by the respondent.

The respondent states that despite the challenges presented by the pandemic, it made numerous genuine attempts to engage with the complainant regarding his return to work, however, the matter escalated as a result of the complainant’s failure to keep in contact with his line manager and provide up to date medical certification.

REASONABLE ACCOMMODATION

It was submitted that the complainant states in his complaint that “they made no effort to accommodate my needs in the workplace as requested by my GP, they made no attempt to relocate me…” The respondent states that it wholly rejects this argument.  The respondent asserts that since the commencement of the complainant’s employment, the respondent presented a number of alternative measures to accommodate the complainant to enable him to continue to work, whilst ensuring his medical condition was not compromised. The respondent states that it accepts that employers have an obligation to provide reasonable accommodation to employees who have a disability in accordance with the Employment Equality Acts. It states that the obligation to provide reasonable accommodation is normally considered in the context of this obligation being an exception to the general entitlement of employers under section 16(1) of the Employment Equality Acts to terminate the employment of an employee who is not capable of undertaking the duties of the employee’s job. In most cases, litigation in respect of reasonable accommodation occurs in the context of an employee having been dismissed from his or her employment on grounds of medical incapacity. That does not arise in this case.

The respondent states that the within case relates to a far more limited situation. The complainant’s employment commenced at the start of the pandemic. When the complainant presented to the office on 18 March 2020, he advised management that he was unable to work in the office as he was immunosuppressed. This was later confirmed by the complainant who furnished a medical certificate from his GP dated 19 March 2020, recommending against the complainant attending the office for one month due to his condition/the treatment he was receiving for that condition, which placed him in an at risk category based on HSE advice at that time. The respondent states that at this time, Government advice also advised that all employees work from home where at all possible. As a result, the respondent was unable to provide the complainant with the training required to commence and perform his role remotely. The respondent states that in this regard, it is also noteworthy that the first day the complainant commencement employment was the first time the respondent was notified of the complainant’s condition. The complainant did not disclose this to the respondent on the Health and Character Self-Declaration Form that was furnished to the complainant as part of his contract. It was submitted that the emergency situation presented by the pandemic, significantly hindered the respondent’s ability to consider or make timely accommodations for the complainant when he commenced employment. The respondent states that notwithstanding this, as soon as it became aware of the complainant’s condition and treatment, the respondent made significant efforts to accommodate the complainant during what was an extremely difficult and uncertain time.

The respondent submits that it made arrangements to place the complainant on Special Leave to ensure that he continued to receive a full salary paid while he was unable to attend the office, subject to compliance with the Special Leave Policy. This meant that the complainant remained in the employment of the respondent throughout this time. The respondent asserts that this is supported by emails between the complainant’s line manager and the complainant dated from 20 March to 27 March 2020. It was submitted that the complainant states in his complaint form that the respondent “made NO legitimate attempt to contact me after I sent in the GP letter and never even gave me a number to call.” The respondent maintains that this statement is entirely false. Since being placed on leave, the complainant’s line manager SD made a number of genuine attempts to engage with the complainant regarding his return to work and any accommodations the respondent could put in place to facilitate this. This included a number of calls and emails to the respondent. As stated above, it was subsequently discovered by the respondent that emails sent by SD were mistakenly sent to the complainant’s work email address, rather than his personal email address, and therefore, he was unable access these. The respondent states that this error does not negate the fact that the attempts were made. The respondent highlights the email dated 27 March 2020 from the complainant’s line manager to the complainant, updating the complainant in relation to social distancing measures in the office. This states: “At present the office us working in shifts 8am to 2pm and 2pm to 8pm in order to accommodate social distancing. We have set up two teams within the office to work these shifts.” The respondent states that it sent further emails to the complainant to accommodate his return to work. It refers to the email from the complainant’s line manager to the complainant dated 20 April 2020, which stated: “As we were not in a position to assign duties to you when you commenced your employment with the Courts service I am unable to evaluate defined objectives and duties on an ongoing basis as part of the usual probationary process. As it is not possible for me to proceed with evaluating your performance I feel the fairest option would be to pause your probationary period until you return to work. I would like to discuss this with you and would be grateful if you could give me a date/time that would suit to give you a call”.

The respondent refers to the email from the complainant’s line manager to the complainant dated 22 April 2020 which states: “Just a quick update on the current office arrangements. As per my email on 27 March 2020, we have now split the office into teams to adhere to social distancing requirements. Those who can work remotely will continue to do so where feasible. We also have free courtrooms for anyone who would prefer to work alone. Although we were unable to provide training on your commencement in the Courts Service due to circumstances at the time, we would now be in a position to provide a number of individual tasks for you when you are ready to return to work that would only require minimal training. When you are in a position to return to work, I can put a workload together for you and arrange a place for you to work that provides social distancing according to HSE guidelines. If you could let me know in advance of a date you may return I can put these arrangements in place.”  The respondent highlights the email from the complainant’s line manager to the complainant dated 30 April 2020 which states: “I tried calling you this morning after 11 as I haven’t received any correspondence or updates from you in recent weeks. As you are aware, the medical certificate you submitted was for one month from 19 March 2020. This would imply that you would be returning to work on 20 April 2020. I would be grateful if you could contact me on phone number [my emphasis] or alternatively mail me to let me know if you intend to return to work or will be submitting a new certificate. I have attached the Covid-19 updated of 09/04/2020 and the Courts Service Guidance on leave for your perusal. As per previous correspondence we are complying with social distancing in the Courts Service as per HSE guidelines and are now working with the Courts Service redeployment team and the HR department to ascertain if staff members would be more suited to other areas of work. I will try to contact you again on the mobile number you have provided. If you could let me know if you have changed umbers or if you have an alternative method of contact you could supply me with…”.

The respondent submits that notwithstanding the error when sending the above emails, this demonstrates the lack of any discriminatory intent on the part of the respondent, but rather, the bona fide efforts made by the respondent to engage and accommodate the complainant in light of his medical condition. The respondent states that as referenced above, the complainant’s line manager phoned the complainant on 30 April and 6 May 2020, but was unable to contact the complainant or leave him a voicemail. The complainant did not return the complainant’s line manager’s missed call at any stage during this time period. The respondent states that it went to considerable lengths to accommodate the complainant’s return to the workplace. Unfortunately, these efforts were hampered by the complainant’s failure to keep in contact with his line manager while he was absent, or account for his unauthorised absence by providing the respondent with an up to date medical certificate. The respondent states that in this regard, despite its numerous attempts to contact the complainant, the complainant did not attempt to contact the respondent from 27 March 2020 until 15 May 2020 (over 7 weeks). The respondent states that the complainant eventually decided to finally contact the respondent on foot of a letter from the respondent specifically instructing the complainant to make contact. The respondent does not accept that the complainant was not aware of his obligation to keep in touch with his line manager regarding his absence, and to furnish the respondent with up to date medical certificates. This obligation was clearly set out in the respondent’s Sick Leave Policy and the Code, which were provided to the complainant on commencing employment.

Furthermore, and in response to the complainant’s question as to whether he was required to comply with sick leave requirements given that he was on special leave, as per the Courts Service Guidance on Absence during COVID 19 Policy (which was emailed to the complainant on 26 March 2020), this states: “Where working from home is not an option special leave with pay should apply to periods of medically recommended self-isolation as per Circular 2/1976 Current rules for management of sick leave apply; i.e. submission of certificates, regular contact with manager as per Circular 05/2018 Non-compliance with these guidelines may result in disciplinary measures. 3. Obligations of Employee - Comply with HSE guidance - Contact manager regarding potential absence - Be available to work from home - Submit Doctors Certificate or HSE note requiring self-isolation - Contact manager on regular basis - Submit certification for periods of leave - Comply with all other sick leave regulations”. The respondent submits the above clearly highlights the obligation on the complainant to submit to the respondent a doctor’s note or note requiring self-isolation and advises that disciplinary action may be pursued should the complainant fail to comply with these guidelines. The respondent submits that not only did the complainant fail to adhere to these requirements, he refused to acknowledge that he was required to do so in any of the meetings, calls and correspondence between the parties.  The respondent states that notwithstanding this, no determination was made by the respondent in respect of these allegations following the disciplinary meeting which the complainant attended and at which he was represented, as the complainant resigned before the respondent had an opportunity to make a determination.

The respondent gave examples of employees with medical conditions who were accommodated in the workplace. The respondent gave details of a female employee with Crohn’s disease who was given an isolated environment in a free courtroom as the courts were suspended at this juncture due to the pandemic. It gave details of another employee with diabetes who was permitted to work remotely via a laptop and given duties involving management of a mailbox. The respondent also gave details of a staff member who was immunosuppressed and the person in question availed of annual leave and subsequently returned to the workplace in one of the free courtrooms. The respondent states at this juncture the Circuit and District courts were suspended and all the courtrooms were vacant and in that manner the respondent was in a position to provide an isolated environment in the free courtrooms. The respondent stated that subsequently business started to resume, hearings were organised on a remote basis, pods were established and perspex screens were installed for staff safety. In addition, a substantial number of laptops were purchased to facilitate remote working.

VICTIMISATION

Section 74(2) of the EE Acts defines victimisation as dismissal or other adverse treatment as a reaction to: (a) a complaint of discrimination made by the employee to the employer; (b) any proceedings by a complainant; (c) an employee having represented or otherwise supported a complainant; (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act; (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment; (f) an employee having opposed by lawful means an act which is unlawful under this Act of the said Act of 2000 or which was unlawful or any such repealed enactment; or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs In this context, victimisation as set out in section 74 of the EE Acts is generally agreed to mean an employee suffering some form of what could be described as a retaliatory action from an employer as a result of the employee making equality/discrimination complaints.  The respondent states that it follows that the complainant has not established a prima facie case of a contravention of the EE Acts as there is no allegation that the treatment was in retaliation to raising an equality issue. To the contrary, no equality complaint was lodged by the complainant during his employment. The respondent states that the complainant did not make contact with the respondent during his employment, nor did the respondent impose a sanction against the complainant.

CONCLUSION

The respondent submits that the complainant has failed to establish prima facie evidence that it discriminated against the complainant or victimised him.  The respondent states without prejudice to this, the complainant was not discriminated against due to a failure to provide reasonable accommodation and it is maintained by the respondent that it took all steps reasonable to facilitate the complainant’s return to the office.

The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of disability (ii) failed to provide reasonable accommodation to the complainant (iii) victimised the complainant in terms of the Employment Equality Acts. In reaching my decision, I have considered all the evidence both written and oral presented to me.

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.  In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant.  In a previous Determination, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows –

              "Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court warned that "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn."

Section 6(1) of the Employment Equality Acts provides that: “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 ’ )…”

Subsection 2 sets out the discriminatory grounds as between any two persons, which include the following: “(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”)”

Disability is defined in Section 2 of the Acts:

‘‘disability’’ means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

The complainant provided details of his disability which is Chron’s disease. I am satisfied that the complainant has a disability within the meaning of the definition as set down in the Acts.

I note that on commencement of the complainant’s employment, he was provided with the relevant policies including the Sick Leave policy and Civil Service Code of Standards and Behaviour. I note that JD confirmed to the complainant that he would not be able to work in the office and requested the complainant to furnish the respondent with a medical certificate, I note that as the complainant had only recently commenced employment and had not received the required training to work from home it was not possible to assign him duties to be carried out remotely.  The complainant provided  a letter from his hospital consultant and a medical certificate from his GP advising that it is not safe if the complainant were to work in a non-isolated environment, and that he does not come into work for a month from the date of the certificate and that the issue would be discussed with occupational health to consider a long term resolution.

I note that on 27 March 2020, the complainant’s line manager SD emailed the complainant to arrange for him to be put on Covid 19 Special Leave with pay.

The complainant has alleged that the respondent engineered a situation to get rid of him; however this assertion is not borne out by the evidence heard. The complainant stated that SD lied about not been able to access his voicemail and lied about making efforts to contact him. The complainant has made assertions that SD sent emails to the complainant’s work address as opposed to his personal email and at that juncture the complainant was unable to access his work email; I am satisfied this was an administrative error on the part of SD and when the content of said emails is examined, it shows the bona fides of the respondent and its valid attempts to engage with the complainant.    

Having carefully examined all of the evidence adduced in the within claim, I find that the complainant has not provided evidence to  substantiate his allegations that he was discriminated against on grounds of disability. I find that pursuant to the Sick Leave policy and Civil Service Code of Standards and Behaviour Code, the respondent had an obligation to adhere and enforce said policies in respect of its employees. 

While the complainant states he was not aware that it was his responsibility to maintain contact with his line manager and submit medical certification, I find this argument implausible in the context of the complainant’s previous employment in the Civil Service. Based on the evidence heard I find that the issue that led to the invoking of the disciplinary process was the complainant’s refusal to accept that he had a duty to remain in contact with his employer at this time. I note from the submissions received that no contact had been made by the complainant with the respondent since 27 March 2020 which was over 7 weeks since he had last contacted the respondent. In addition, no up to date medical certificate had been provided for over a month. The complainant maintained that he was not required to make contact with the employer due to his medical condition. I am satisfied that given the confrontational stance taken by the complainant in this regard and given the set of circumstances which had occurred, in that, the complainant (i) did not attend for a period 19 March 2020 to 14 May 2020, (ii) did not contact his office manger or HR from 27 March 2020 to 14 May 2020 and (iii) did not provide medical certification after the initial on month notification, the respondent felt that this merited invoking the Civil Service Disciplinary Procedures for new entrant civil servants Circular 4/2019.  I consider that this was a reasonable course of action by the respondent based on all of the circumstances.

While the complainant stated that given he was on special leave, he questioned whether there was a requirement to comply with the sick leave requirements; upon review of the relevant Circular, I note that it highlights the obligation on the employee to submit to the respondent a doctor’s note or note requiring self-isolation. In addition, the Circular states that disciplinary action may be pursued should there be a failure to comply with these guidelines.   

I note that the complainant had the assistance of his union representative at this juncture. While the complainant states that his union representative told him that he was “being railroaded out of the place”; this allegation was not substantiated. At the hearing the union representative gave testimony stating that he had no recollection of this and it was not the type of conversation that took place. TC also stated that the respondent was in fact one of the more reasonable and accommodating departments that the Union dealt with. TC further stated that the complainant had said to him that he was contemplating resigning as he received notification that he was placed high on a panel and TC was aware that panels move very quickly in the Dublin region.  

In relation to the allegation by the complainant that the respondent failed to provide reasonable accommodations for his disability; I note that the respondent only became aware of the complainant’s disability on the day he commenced employment. In addition, the emergency and evolving situation which presented as a result of the Covid pandemic had a significant impact on the respondent’s ability to make timely accommodations for him when he commenced employment.   

I am cognisant of the email dated 27 March 2020 from the complainant’s line manager to the complainant, updating the complainant in relation to social distancing measures in the office. This states: “At present the office is working in shifts 8am to 2pm and 2pm to 8pm in order to accommodate social distancing. We have set up two teams within the office to work these shifts.” The respondent states that it sent further emails to the complainant to accommodate his return to work. It refers to the email from the complainant’s line manager to the complainant dated 20 April 2020, which stated:

“As we were not in a position to assign duties to you when you commenced your employment with the Courts service, I am unable to evaluate defined objectives and duties on an ongoing basis as part of the usual probationary process. As it is not possible for me to proceed with evaluating your performance, I feel the fairest option would be to pause your probationary period until you return to work. I would like to discuss this with you and would be grateful if you could give me a date/time that would suit to give you a call”.

I also note the email from the complainant’s line manager to the complainant dated 22 April 2020 which states:

“Just a quick update on the current office arrangements. As per my email on 27 March 2020, we have now split the office into teams to adhere to social distancing requirements. Those who can work remotely will continue to do so where feasible. We also have free courtrooms for anyone who would prefer to work alone. Although we were unable to provide training on your commencement in the Courts Service due to circumstances at the time, we would now be in a position to provide a number of individual tasks for you when you are ready to return to work that would only require minimal training. When you are in a position to return to work, I can put a workload together for you and arrange a place for you to work that provides social distancing according to HSE guidelines. If you could let me know in advance of a date you may return I can put these arrangements in place.”

 The respondent highlights the email from the complainant’s line manager to the complainant dated 30 April 2020 which states:

“I tried calling you this morning after 11 as I haven’t received any correspondence or updates from you in recent weeks. As you are aware, the medical certificate you submitted was for one month from 19 March 2020. This would imply that you would be returning to work on 20 April 2020. I would be grateful if you could contact me on phone number [my emphasis] or alternatively mail me to let me know if you intend to return to work or will be submitting a new certificate. I have attached the Covid-19 updated of 09/04/2020 and the Courts Service Guidance on leave for your perusal. As per previous correspondence we are complying with social distancing in the Courts Service as per HSE guidelines and are now working with the Courts Service redeployment team and the HR department to ascertain if staff members would be more suited to other areas of work. I will try to contact you again on the mobile number you have provided. If you could let me know if you have changed numbers or if you have an alternative method of contact you could supply me with…”.

Notwithstanding the administrative error that occurred when these emails were sent, it is evident  based on the content of the emails together with the phone calls by SD to the complainant’s mobile that the respondent made bona fide efforts to engage with the complainant and accommodate the complainant in respect of his medical condition.

While the disciplinary process was invoked, I note that no conclusion in respect of the matter was reached as the complainant resigned his position having got notice that he was successful in a separate competition.  I note that based on evidence of the respondent’s witnesses that given the complainant’s placement on the panel, the likelihood was that he would be provided with a position within a very short period of time. Based on the evidence heard, I am satisfied that the complainant had resigned his position before the respondent had an opportunity to make a determination on the disciplinary matter.

Based on all of the circumstances outlined above, I find that the complainant has failed to demonstrate a nexus in relation to his treatment in employment and his disability therefore I find that he has not established a prima facie case of discrimination on grounds of disability.  

In relation to the issue of reasonable accommodation, I note that the complainant was placed on Special Leave with pay and advised that his probationary period was paused. He was further advised that when he was in a position to return to work, the respondent had free courtrooms at its disposal and they would be in aposition to provide a number of individual tasks for him that would only require minimal training in an isolated environment. Having heard all the evidence, I find that the complainant took issue with the respondent based on his responsibility to maintain contact with his employer. Subsequently the complainant resigned on the basis of being placed relatively high on a separate panel. In those circumstances the engagement and accommodations as laid out in the respondent’s emails could not come to fruition or be completed as the complainant had resigned his position with the respondent.

The respondent gave examples of employees with medical conditions who were accommodated in the workplace at that juncture. The respondent gave details of a female employee with Crohn’s disease who was given an isolated environment in a free courtroom as the courts were suspended at this time due to the pandemic. It gave details of another employee with diabetes who was permitted to work remotely via a laptop and given duties involving management of a mailbox. The respondent also gave details of a staff member who was immunosuppressed and the person in question availed of annual leave and subsequently returned to the workplace in one of the free courtrooms. I note the respondent’s evidence wherein it states at this juncture the Circuit and District courts were suspended and all the courtrooms were vacant and in that manner the respondent was in a position to provide an isolated environment in the free courtrooms. The respondent stated that subsequently business started to resume, hearings were organised on a remote basis, pods were established and perspex screens were installed for staff safety. In addition, a substantial number of laptops were purchased to facilitate remote working.  In all of the circumstances I find that the complainant has failed to establish a prima facie case of discrimination on grounds of disability in relation to his allegation that the respondent failed to provide him with reasonable accommodation. Therefore, his claim in this regard fails.

While the complainant made an allegation of victimisation on his complaint form, when requested at hearing to give evidence regarding the claim of victimisation; he did not proffer any evidence or submission with regard to his claim of victimisation. In all of the circumstances I find that the complainant has failed to establish a prima facie case of a contravention of the Employment Equality Acts in relation to victimisation within the meaning of the definition set out at section 74(2) of the Acts.  In the circumstances, I find that the complainant was not victimised by the respondent.     

I find that the respondent did not discriminate against the complainant on grounds of disability.

I find that the complainant was not discriminated against by the respondent due to a failure to provide reasonable accommodation.

I find that the respondent did not victimise the complainant in terms of section 74 of the Employment Equality Acts.

Disability, reasonable accommodation, victimisation