Complainant

Respondent

Parties

David  Haughney

An Garda Síochána

Complainant

Respondent

Anonymised Parties

Representatives

Mr Michael Hegarty & Ms Siobhan Lafferty Solicitors, Reddy Charlton Solicitors

Mr Declan Harmon BL instructed by Lorraine Williams, Chief State Solicitor’s Office.

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-00045092-001

07/07/2021

The complainant is a Sergeant in An Garda Siochana with 32 years’ service. This complaint was submitted to the Workplace Relations Commission on 7th July 2021.

BACKGROUND

1.      The Complainant joined the Respondent in 1990 and was attested as a member in 1991. Between 1991 and 2014, he worked in regular policing and was attached to the Air Support Unit and the Traffic Unit.  In addition to his road policing duties, he was a Public Order Instructor, an ASP Instructor, an OC Instructor, a Handcuffs Instructor, a Tac Advisor, an Evidence Gatherer, a member of the CBRN Team and Protest Removal Level 1.  The Complainant carried out these functions as an instructor/trainer as well as co-ordinating and developing Training Programmes.

2.      On 14 December 2014 the Complainant was assaulted while on duty and sustained injuries resulting in 70% loss of vision to his left eye. He returned to work in November 2015 and the Chief Medical Officer (“CMO”) deemed him fit to drive at CBD 1 level.

3.      Between 2015 and 2019 the Complainant continued to be involved in the aforementioned training programmes and was subsequently appointed as a Public Order Trainer.  He continued, with the support of his then Superintendents, John Quilter and Eamon O’Neill, to actively carry out his responsibilities and duties with the same degree of competence as before his work related injury in 2014.  The Complainant went to great lengths to continue to be an active member of the Respondent.

4.      In April 2019 the Complainant underwent a further operation to his left eye which resulted in him being absent from work for approximately 4 months. During this time Superintendent Gamble was transferred to Midleton Garda Station.

5.      The Complainant returned to work at Midleton Garda Station on 31 August 2019 and attended a return-to-work meeting with Superintendent Gamble on 1 October 2019.  At this meeting Superintendent Gamble referred to a report which had been obtained from the Chief Medical Officer’s (CMO) which he said stated that the Complainant should be restricted to non-confrontational duties. He did not provide the Complainant with a copy of this report. Superintendent Gamble actively decided to take a narrow interpretation of the CMO’s phrase ‘non-confrontational duties.  In particular the Complainant was informed that he was no longer permitted to engage in any driving, training or present himself in public in uniform. This is the point at which the discrimination towards him commenced.

6.      On 6 October 2019 the Complainant was moved to Unit D (traffic office) which effectively confined him to an isolated office, separate to the main building and his colleagues. This degree of isolation from colleagues and regular duties has had a significant impact on the Complainant’s health and wellbeing.

7.      The Complainant made several attempts to utilise his skills and expertise within the parameters of the recommendation of the CMO with regards to only engaging in non-confrontational duties.

8.      In October 2019, the Complainant was requested to attend the Garda College to recertify as a Public Order tactical advisor. The recertification process was to be conducted in a non-confrontational, controlled training environment.  His superior, Superintendent Gamble refused to allow him to attend.  The Complainant raised this decision with his Chief Superintendent which resulted in the original direction being reversed.

9.      On 10 December 2019 the Complainant attended an appointment with a Specialist in the Mater hospital which was arranged by the CMO. At this appointment the Specialist explicitly stated that there was no reason why he could not drive a motor vehicle. Despite this, his duties continued to be restricted by Superintendent Gamble.  At that stage the Complainant was not permitted to drive; to participate in non-confrontational training programmes; or, present in uniform.

10.   On 20 December 2019 the Complainant received an email from Superintendent John Deasy, seeking assistance from the Complainant, with the training of the Public Order Unit. Superintendent Deasy informed him that training in the Wexford/Wicklow Division was due to commence in January 2020. Superintendent Gamble refused to allow him to participate.  Following representations Superintendent Gamble relented and allowed the Complainant to attend on one day only on condition that he would travel with Superintendent Deasy and his attendance was restricted to observation only.

11.   On 2 January 2020, the Complainant received a telephone call from Inspector John Kelly requesting assistance in the oversight of training in the use of ASP Batons and handcuff courses. The Complainant’s attendance was to be in a supervisory role as the instructors in that Division were new and had never rolled out a course before. The task was non-confrontational and controlled in nature.  Inspector Kelly made formal requests in writing seeking his assistance. Once again, his involvement in the oversight of training was denied, despite his willingness to travel to the location (Kerry Division) via public transport. 

12.   On 19 June 2020 the Complainant submitted a proposal/report to Chief Superintendent Myers setting out ways in which full use could be made of his skill set in a training/instructor capacity at Regional Level.  The Complainant requested not only that Chief Superintendent Myers consider the report, but to circulate it (at regional level) if possible. To date, no response to his proposal/report has been received.

13.   While the Complainant continues to suffer from headaches and migraines as a result of the injuries sustained on 14 December 2014, these symptoms have had no impact on his ability to carry out certain of his duties, including driving and engaging in training programmes.  Notwithstanding this, Superintendent Gamble repeatedly prevented the Complainant from engaging in any meaningful role with the Respondent allegedly under the guise of his concern for the Complainant’s ‘welfare’. This was despite the fact, it was evident, that the diminution of the Complainant’s duties was impacting on his mental health and wellbeing.

14.   The Complainant was absent from work on sick leave due to work related stress from 18 July 2020 until 22 January 2021 as a result of the impact this discrimination and failure to accommodate was having on his health.  From 25 January 2021 to 17 September 2021 the Complainant was on sick leave due to severe migraines associated with the original injury.  The Complainant transferred to Ballincollig Garda station in September 2021, which is an additional 68 km round trip from his home, on the understanding that he would be allowed to carry out Public Order Training and related duties.

15.   During the time period in which the Complainant was out on sick leave, a letter was sent from Assistant Commissioner Paula Hillman regarding the Extension of Public Order Training Re-Certification for Operations Public Order Personnel.    This content relates to operational members. The content of this letter was expanded upon in a Memo dated 7 April 2021 from Assistant Commissioner Paula Hillman. In this memo she extended the re-certification period for members because of Covid.

16.   In November 2021 the Complainant received correspondence stating he was to undergo a fitness test to re-certify as a Trainer. This direction was queried by the Complainant as there is no such requirement in the Policy Document 75/2017 or in the Public Order Manual of 2017. If such a requirement was to be introduced, it would make it impossible for him to be recertified and take part in training.  A copy of correspondence between the Complainant and the Respondent in respect of this matter was made available. The Complainant has received no substantive response to this issue. 

17.   A meeting was then held in Anglesea Street Garda Station, Cork on 29 August 2022 on the subject of Public Order Instructors and Trainers. When the Complainant’s status was raised Chief Superintendent Tony O’ Donnell repeatedly said he would not bring personalities or disabilities into the discussion. This meeting was attended by 7 people including Assistant Commissioner Michael Finn.

18.   The Complainant’s role has been reduced to that of a ceremonial role because he is not allowed to take part in any meaningful role, including training for which he is highly qualified. By way of example the Complainant was asked to attend in full ceremonial uniform at celebrations to mark the centenary of An Garda Síochána.

19.   This is despite the fact that the Complainant has made several attempts to return to duties in line with medical recommendations which have been denied resulting in ongoing distress and hardship to his wellbeing.

20.   The Respondent has discriminated against the Complainant as result of his disability and has failed to provide reasonable accommodation in order to allow him to return duties in accordance with medical recommendations.

Bullying and Harassment Complaint.

21.   As a result of the treatment the Complainant received at the hands of Superintendent Gamble, he made a complaint under the Respondent’s ‘Working Together to Create a Positive Working Environment’ Policy.  A copy of the Respondent’s Policy is attached at Appendix 8 and a copy of the Complainant’s Bullying and Harassment Complaint is attached at Appendix 9.

22.   The Complainant’s complaint was broken down to ten events.  These can be summarised as follows:

a.       Incident/Event 1:  The Complainant explained that the first time he met with Superintendent Adrian Gamble, he was non effective, due to the detached retina. The purpose of his visit was to introduce himself and to say if the court case involving Garda William McElhinney was up for hearing he would make himself available.  Sergeant Haughney complained that "he was dismissive of me and just seemed to use the opportunity to get me to sign a form regarding contact/welfare. There was very little interaction. There was no attempt to create any rapport".

b.     Incident/Event 2:  The Complainant outlined a Return-to-Work Interview on 1st October 2019. He came in early to facilitate the meeting. The Complainant described the meeting as “ill mannered, hostile, aggressive and confrontational.

c.      Incident/Event 3:  The Complainant complained that Superintendent Gamble would not allow him to attend Re-certification Training for Public Order Tactical Advisors Course at the Garda College on the 24 October and this decision being overturned after a meeting with Chief Superintendent Myers.

d.      Incident/Event 4:  The Complainant stated that he was not allowed to travel to Kerry to    oversee re-certification training Kerry Division in January 2020.

e.      Incident/Event 5:  The Complainant complained that he was not being allowed to travel to the Wexford/Wicklow Division as a Public Order Trainer - basic & refresher courses January 2020 as this was objected to by Superintendent Gamble.

f.       Incident/Event 6:  The Complainant outlined how his claims submitted for Public Order Training were not processed and had not yet been paid.

g.      Incident/Event 7:  The Complainant explained a situation whereby he was requested to attend a meeting with Superintendent Gamble at 14:00 on 15 April 2020. The Complainant came in early to attend the meeting. At 14:00 Superintendent Gamble came out of his office, saw the Complainant and told him "You will have to wait, I'm going for my lunch...”

h.     Incident/Event 8: The Complainant described how he came up with a proposal on how to deliver anti-spit guard training for the Division in line with Covid 19 restrictions.  Superintendent Gamble was unhappy at this proposal and was setting unachievable targets.

i.       Incident/Event 9:  The Complainant explained how he applied for annual leave and it was not granted.

j.       Incident/Event 10:  The Complainant complained about a meeting with Superintendent Gamble on the 10th June 2020. He states there wasn't even the pretence of civility at this meeting.

23.   The Complaint was submitted in November 2020.  An initial decision was made in July 2021 making no findings against Superintendent Gamble. An appeal was lodged by the Complainant.  Under the Respondent’s Policy, Ms Suzanne Lewis BL conducted an audit of the investigation.  The final decision on the appeal was made on 9 May 2022 and there was a finding made against Superintendent Gamble.

24.   It is submitted that a number of comments made by Superintendent Gamble, in his own response to the Complaint, are instructive in relation to his perception of the Complainant. 

25.   At page 2 of his response at Appendix 10 he states that “My primary concern is for Sergeant Haughney [sic] welfare and that of his good eye…My primary responsible [sic] was for his welfare and his responsibly [sic] to his good eye.”  The fact that he refers to the Complainant’s ‘good eye’ in itself is demeaning and humiliating.

26.   At page 5 of his response at Appendix 10, he outlines that “I specifically recall receiving a call from Supt John Deasy influencing reconsideration of my initial decision not to allow Sgt Haughney to attend the Wexford Public order training.  The reconsideration of my earlier decision was based on a strong and personal reassurance by Supt J Deasy that he would not leave Sgt Haughney’s side. I again specifically brought my concerns about Dave Haughney welfare to Supt Deasy’s attention.”  Whilst the CMO report states that that the Complainant should not engage in confrontational duties, there is no suggestion that he required such a high level of supervision, essentially treating the Complainant like a child.  No CMO advice provided suggest that this was warranted.

27.    At page 7 of his response at Appendix 10, he discusses not allowing the Complainant to provide Spit Guard training and states that “During the meeting I directed Sgt Haughney not to attend this task until further notice.”  It is unclear why the Complainant could not attend at such training or how this would have been classed as confrontational duties if he had.

28.   Superintendent Gamble repeatedly alleges that he was concerned about Sergeant Haughney’s welfare and his ‘good eye’.  However, he does not appear to have provided any reasonable accommodation whatsoever to allow Sergeant Haughney to play a greater role.

29.   Whilst the final appeal upheld the original decision for the most part, it did identify an incident of harassment.  The appeal decision states:

“In the set of circumstances complained of, there is one clear incident of harassment.  This is distinguished from bullying as it must be based on one of the 9 characteristics and here it is clear that Sergeant Haughney was suffering from a disability at all material times.  This incidence of harassment is contained at Incident 7.  Sergeant Haughney’s treatment as a person with a disability, of being requested to attend a meeting at a certain time 14.00 and then at the appointed time to be told by Superintendent Gamble that he would have to wait as Superintendent Gamble was going for lunch was unacceptable and humiliating.  It is the effect of the behaviour on Sergeant Haughney which is important “in all my service, I have never experienced such utter disdain from another member.” The effect of this on Sergeant Haughney [sic] was to cause him humiliation and undermine his dignity at work.”

INTERACTION WITH THE CMO

It is worth noting that in appeal decision conclusions, the following comments were made:

“The advice of the CMO given in the letters of September 2019 and November 2019 appear to have motivated the very restrictive approach adopted by Superintendent Gamble to Sergeant David Haughney. 

The non-specific nature of these advices appears to have caused confusion as to what duties could be safely performed by Sergeant Haughney with other Senior officers interpreting them in a different way.

It was incontrovertible that Sergeant Haughney’s work had to be non-confrontational, but no expert direction was given as to what this meant.”

The Respondent may state that, as highlighted in the appeal decision, there was confusion as to the meaning of the CMO’s advices.  With respect, non-confrontational has an ordinary meaning and is easily understood.  It is unclear why the CMO’s advices would in any way mean that he could not carry out training or drive. 

This is evidenced by the response by the CMO when asked to clarify what he meant.  By letter dated 5 November 2019, the CMO stated that “I advise that non-confrontational duties would be those policing duties that do not have a foreseeable risk of exposure to confrontation”.

As outlined, the Complainant had to go onto sick leave pursuant to the treatment which he was receiving in respect of his role.  Further to this he had a further telephone consultation with the CMO in 2020.  In the letter from the CMO he states that “In the above context, it may be reasonable for the organisation to accept the member having oversight of training including of operational training delivery while restricted to non-confrontational duties.”  This confirmation, albeit it is argued this was not required and was fairly obvious, came over a year after the Complainant had returned to work further to his detached retina and had been trying to engage in a meaningful way.

LEGAL SUBMISSIONS

BURDEN OF PROOF

·        Section 85A of the Employment Equality Acts 1998-2015 sets out the burden of proof which applies in a claim for discrimination. The Complainant is required to establish facts of “sufficient significance” from which it may be presumed that there has been discrimination in relation to him. If a prima facie case is then established, the burden then shifts to the Respondent.

·        The Labour Court’s (and WRC’s) approach to this issue and the test for applying section 85A is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):

“...the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

·        The legal test as to whether the Complainant had established a prima facie case of discrimination was also set out by the Labour Court in O’Higgins v. University College Dublin [2013] E.L.R. 146. This case reiterated that it is for the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. The Court held that:

‘It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts.

·        Whether a prima facie case has been established must also be in accordance with the test set down by the Labour Court in Valpeters and Melbury Developments [2010] ELR 64. It is submitted that, at a minimum, discrimination is clearly within the range of presumptions that can be drawn from the instant facts.

·        Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is the disability of the Complainant.

Disability Discrimination

·        The Complainant suffers from a disability and has been trying to engage with the Respondent with regard to his role since he returned to work after his retina was detached in 2019. Rather than facilitating his role and providing reasonable accommodation to the Complainant, the Respondent has instead done everything in its power to obstruct him from carrying out a meaningful role within the Respondent. The Complainant has been directly discriminated against on the basis of his disability.

·        The definition of disability contained in the Acts is as follows:

“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 definition of disability in the Acts sets out in general terms the broad nature of conditions or impairments which could give rise to a disability for the purposes of the Acts. The definition does not require that a disability meet a threshold of severity for the condition or impairment to meet the definition for the purposes of the legislation.

·        The jurisprudence of the Labour Court and Equality Tribunal shows a broad, non-exhaustive list of conditions that have been found come within the definition of disability. There is no doubt that the Complainant’s condition comes within the definition of a disability as accepted pursuant to the Acts.

DISABILITY DISCRIMINATION – REASONABLE ACCOMMODATION AND SECTION 37(3)

·        The cognisable period of this case runs from his return to the workplace and there has been continuing discrimination from that time. There has not been any proper consideration of reasonable accommodation for the Complainant to date and he continues to have a marginalised role within An Garda Síochána.

·        Section 37(3) of the Act provides as follows:

·        “It is an occupational requirement for employment in the Garda Síochána, Prison Service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.

·        This section has clearly been decided upon in the case of Robert Cunningham v the Irish Prison Service [2020] IEHC 282. In that case, Barr J made the following comments which are on point with this matter at para.69:

“For example, in An Garda Síochána, most Gardaí would have to be able to chase and apprehend suspected criminals, intervene in situations of violence and carry out searches of buildings and other locations. A person in a wheelchair would not be able to perform these functions. However, if the Garda was employed in the Forensic Document Section, or in the Cyber Crime Section, he or she could probably be relatively easily accommodated if they had an accident and had to use a wheelchair, because their work is completely deskbound. In these circumstances, they could be accommodated in their use of the wheelchair, without in any way compromising the operational capacity of An Garda Síochána.”

·        Thus, the fact that the Complainant is a member of An Garda Síochána does not mean that there is a complete bar on bringing this type of claim, and nor is the Respondent provided with a complete defence.

·        This is particularly the case when Section 37(5) persists with the wording of the earlier version of the Act for the purposes of the Defence Forces alone – “In relation to discrimination on the age ground or disability ground, nothing in this Part or Part II applies in relation to employment in the Defence Forces.” This is no longer the case for An Garda Síochána and therefore the Complainant is entitled to the Respondent considering the issue of reasonable accommodation.

·        It is also worth noting that Barr J made the following remarks in his judgment at para.63:

“It is clear from the decision in the Nano Nagle case that there has been a paradigm shift in the way that disability is to be viewed in European and Irish law. This has been brought about by the implementation in Irish law of the Framework Directive in the Employment Equality Act (as amended) and in particular, by the general duty of providing reasonable accommodation which is placed upon the employer by s.16 of the Act. The judgements of the CJEU referred to earlier and the judgement of the Supreme Court in the Nano Nagle case, make it clear that the provisions of the Framework Directive and of the Act provide rights of real substance to persons of disability, who wish to enter or remain in work. In addition, the Nano Nagle case makes it clear that the provisions of the CRPD are also relevant to the question of the correct interpretation of the Act. The court must interpret s.37.3 of the 1998 Act in light of Art. 27 of CRPD to which both the EU and Ireland are signatories.”

·        It is then appropriate to consider the issue of reasonable accommodation. Section 16(3) states the following:

(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—

·        the financial and other costs entailed,

·        the scale and financial resources of the employer’s business, and

·        the possibility of obtaining public funding or other assistance.

·       In the case of Marie O’Shea v Health Services Executive (ADJ-00024740), it was held by the WRC that the HSE could not merely say that there were no ‘light duties’ available when it had given no serious consideration as to how Ms O'Shea could have been accommodated or to fully explore how her duties and tasks could have been adjusted so as to achieve that result. In that case there was simply no evidence that the HSE applied the terms of section 16(3) EEA in the case of Ms O'Shea.

·        The WRC went on to note that, while it is clear from the decision in Nano Nagle that consultation regarding a reasonable accommodation is not mandatory, if an employee seeks a reasonable accommodation and that accommodation is refused, they are entitled to be informed of the reason(s) for the refusal. The WRC held that this is "surely the minimum that can be expected under fair procedures", noting that a failure to provide reasons for refusal would leave the employee in limbo. Furthermore, it was held that the obligation to provide such information is necessary for the employee to make a grounded appeal.

·        It was held in that case that:

o   the reason(s) for the refusal to make a reasonable accommodation was never communicated to Ms O’Shea.

o   the HSE failed to provide any evidence that it applied or even considered the terms of section 16 EEA when making the decision that Ms O'Shea could not be accommodated; and

o   the HSE did not carry out a detailed assessment of Ms O'Shea's normal duties compared to the adaptation required to accommodate her.

·        The decision was taken by the HSE without any adequate medical assessment of Ms O'Shea's capacity to perform a range of the principal duties and responsibilities of her role, and without considering:

·        to what extent she could perform those duties;

·        what supports could render her capable of performing those duties; and/or

·        what distribution of tasks could occur to render her capable of performing those duties.

·        It is evident that the Respondent has also failed to undertake any of its obligations under section 16(3) of the Act and has not carried out any kind of adequate assessment of what roles the Complainant can carry out.

·        Further the case of Nano Nagle School v Daly [2019] IESC 63 is the seminal case on reasonable accommodation. It is worth remembering that in that case, it broadened the scope of an employer’s duties with regards to reasonable accommodation to include the redistribution of core duties as well as non-core tasks. Further the test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee, as this would almost inevitably impose a disproportionate burden on an employer.

·        It is apparent from the facts in this case that the Respondent did not act reasonably towards the Complainant as the Respondent did not engage with the Complainant in relation to facilitating his role in the workplace.

·        The Complainant tried to engage with the Respondent with regard to meaningful roles which he could carry out after his return to work in 2019. Rather than facilitating his return to work, the Respondent has instead done everything in its power to obstruct his return to a meaningful role within the Respondent.

·        Section 16(3) of the Acts imposes the obligation of reasonable accommodation on employers for employees and prospective employees. Employers are expected to take a proactive approach in assessing suitable measures with which an individual with a disability can be accommodated in the workplace. It requires an individualised approach by employers. In the Respondent’s case, despite being provided with a clear response from the CMO, Superintendent Gamble continued to restrict his activities beyond that suggested by the CMO.

·        While Superintendent Gamble may assert that he sought further clarification from the CMO, it is somewhat unclear what his difficulty was with ‘non-confrontational duties or why training, which the Respondent was qualified to undertake, would not be covered by the meaning of non-confrontational duties.

·        At no stage does Superintendent Gamble appear to have sought information on what reasonable accommodation could have been provided to the Complainant in order to facilitate him in a meaningful role. Instead, he consistently created further barriers for the Complainant, humiliated the Complainant by putting him in observational roles thus diminishing his authority in front of other members, and refused to allow him to carry out a number of roles which in reality could not be viewed as being in anyway confrontational.

·        The above illustrates examples of not only a failure to provide reasonable adjustments, but also less favourable treatment on grounds of disability.

 HARASSMENT

·        Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is the disability of the Complainant.

·        For the purposes of harassment, Section 14A (7) of the Act provides:

“(7)(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

·        In a claim for harassment or sexual harassment, it must be shown that the conduct complained of was unwelcome. The employee must decide what is unwelcome and from whom, if anyone, such behaviour is welcome or unwelcome.

·       The test is a subjective one and the intention of the perpetrator of the harassment or sexual harassment is largely irrelevant. It is sufficient if it has a negative effect on the victim. The conduct should be viewed from the perspective of the victim. It is submitted that the conduct outlined in this claim clearly violated the Complainant’s dignity and created an intimidating, hostile, degrading, humiliating or offensive environment for him.

DAMAGES

·        It is evident that the Complainant has suffered a great deal as a result of the treatment by the Respondent and the maximum compensation should be provided under the Act.

·        It is also worth noting that in the case of Nadezda Solomonova v Milne Foods Limited (ADJ-00023754), it highlighted that the employee’s length of service with the company was stated to be a factor in determining the level of compensation awarded in this case. The Complainant has 32 years of unblemished service with the Respondent which should be taken into consideration when making any award in favour of the Complainant.

·        The Complainant respectfully requests that the Adjudication Officer find in his favour and uphold his complaint.

Oral evidence.

1.Ms Denise Coleman – member of An Garda Siochana and complainant’ spouse. Ms Coleman provided some useful information into the extent of the Complainant’s injuries and the extent of the complainant’s efforts to become fit enough to return to his work.

2. Retired Inspector Owen Healy gave evidence in relation to the complainant’s experience, calling him one of the most experienced men in the region (Kerry, Cork, and Limerick). When he (Retired Inspector Healy) was the complainant’s line manager he relied upon him a lot due to his experience.

3. Retired Inspector Joseph O’Connor attended a return-to-work meeting with the Complainant and Superintendent Gamble on 1st October 2019 and described Superintendent Gamble’s attitude as being hostile and that Superintendent Gamble’s tone was very aggressive. Retired Inspector O’Connor stated that at the return-to-work meeting was tense, he thought it was going to become confrontational on the part of Superintendent Gamble. In relation to the report from the CMO, Superintendent Gamble kept waving the report in front of the complainant and would not show him the report.

4.Superintendent John Deasy. Supt Deasy stated that he knew the Complainant since 2003. Supt Deasy stated that the complainant made it very clear to all what his limitations were in relation to training but still wanted to utilise the complainant’s skills in the area of training. Supt Deasy also stated that three previous superintendents had no problem with the complainant providing training. During cross examination Supt Deasy stated that a large part of why we are here today is down to interpretation of advices provided by the CMO.

The Complainant suffered a serious injury when he was assaulted in the course of his duties in December 2014. It is acknowledged that this has had life-changing effects on the Complainant. The Respondent respects the fact that the Complainant has made strenuous efforts to overcome his injuries and to return to his duties. His commitment to his duties has been unwavering and he is only to be commended for this.

An Garda Síochána is fully committed to utilising the skills and competencies of the Complainant as a highly experienced Sergeant for the remainder of his career. The Respondent is also committed to ensuring that the Complainant has a fulfilling and meaningful role within An Garda Síochána.

The medical assessment of the Complainant

1.      The eye injury sustained by the Complainant in the criminal assault he suffered in December 2014 has resulted in 70% loss of vision to his left eye. 

2.      There is no doubt, and it is fully accepted by the Respondent, that this condition is a “disability” within the meaning of that term as provided for in section 2(1) of the Employment Equality Act 1998 (as amended) (“the 1998 Act”).

3.      The Respondent also accepts that, consequent on the Complainant being a person with a disability, An Garda Síochána is required to provide the “appropriate measures” in relation to the Complainant in order to allow the Complainant to participate and advance in his employment.  This is in accordance with the requirements of section 16(3) of the 1998 Act.  It is the Respondent’s case that An Garda Síochána has fully complied with its obligations in this regard.

4.      An Garda Síochána has the benefit of assessments in occupational medicine that are carried out by the Chief Medical Officer of An Garda Síochána (“CMO”) and his staff.

5.      Given the effect of the Complainant’s disability, the overriding consideration from an occupational health perspective was to ensure that the sight in the Complainant’s right eye was preserved.  Any occupational injury that the Complainant might receive to his right eye would have a catastrophic effect on the Complainant.

6.      It is against that background that Dr. Richard Quigley of the CMO’s office issued his advices of the 18th September 2019. These advices bear careful examination.  They state that “It is reasonable that [the Respondent] would resume strictly non-confrontational duties…”.[1]

The operational decisions consequent on the medical advice

1.      While the CMO’s office provides advice to the Respondent’s organisation, naturally the manner in which those advices are applied must, in general terms, be left to local management in accordance with the individual circumstances of a particular member of An Garda Síochána and operational requirements.

2.      The foregoing is entirely appropriate in accordance with the provisions of section 37(3) of the 1998 Act, which provides that:

“It is an occupational requirement for employment in the Garda Síochána…that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána…may be preserved.”

3.      In the circumstances of the Complainant’s individual case, the assessment of the duties that could be assigned to him, having regard to the advices of the CMO’s office, fell to Superintendent Adrian Gamble. Supt. Gamble is the Superintendent at Midleton Garda Station, to which the Complainant was then attached.

4.      In order to assist local management with decisions further advices were obtained from Dr. Quigley dated the 5th November 2019. Dr. Quigley advised that “[N]on confrontational duties would be those policing duties that do not have a foreseeable risk of exposure to confrontation”.

5.      In order to fully appreciate the decision that Supt. Gamble had to make in terms of assigning duties to the Complainant, one must reflect on the nature of the duties undertaken by persons of the Complainant’s rank, which is generally a front-line role with important supervisory duties over a number of Gardaí.

6.      Midleton Garda Station is a busy station and District Headquarters.  It fulfils the full gamut of duties that one would expect of such a station.  Most duties within such a station and District that would be performed by a Sergeant would be public-facing and would carry with them the risk of confrontation.  Even within the station, the risk of confrontation exists whereby detained persons are conveyed through operational areas of the station.

7.      It must also be borne in mind that members of An Garda Síochána are members 24 hours a day.  They have a solemn obligation pursuant to the declaration they make upon attestation to uphold the law.  This raises the spectre that even duties that are ostensibly non-confrontational can quickly become confrontational in the operational environment.  For example, members of roads policing duties could encounter a public order incident that they would be duty bound to respond to.  The public would rightly expect such a response.

8.      It is also relevant to state that An Garda Síochána is a disciplined force with a rank structure under which duties are assigned and organised.  Duties are always subject to change from time to time in accordance with organisational and operational priorities and needs.

9.      In the circumstances, Supt. Gamble had to strike a balance between:

a.      Ensuring that the advice of the CMO’s office that the Complainant be engaged in strictly non-confrontational duties be complied with,

b.      Assigning meaningful and fulfilling duties to the Complainant according to his rank, experience and skills,

c.      Ensuring that the operational efficiency of An Garda Síochána within his District was maintained.

10.   Supt. Gamble took his responsibility towards the Complainant seriously.  He recognised that he was an experienced officer with a lot to offer.  Supt. Gamble wanted to ensure he was assigned appropriate duties in accordance with the balance to be achieved above.

11.   Having regard to the above, the Complainant was assigned duties within the Roads Policing Section. This was an important role that required oversight by a Sergeant on each tour of duty.  It was a role that was entirely commensurate with the Complainant’s rank.  It is a role that could have been assigned to him regardless of his disability.

12.   The Respondent completely denies the assertion that he has been confined to an isolated office.  While it is correct to say that the role was not a public-facing one owing to the strict need to avoid confrontational duties, the office where the Complainant carried out his duties in Midleton is an integral part of the station.  He was not isolated from his colleagues and remained a valued part of the team within the Midleton District.

The position in relation to public order training

1.      It is accepted that the Complainant has significant experience in relation to public order matters.  It is apparent that this is a part of his duties that he particularly enjoyed.

2.      It is self-evident that public order policing is, by its very nature, confrontational.  Training exercises are frequently conducted in simulated environments which, while controlled and supervised, carry with them injury risks.

3.      The Complainant commenced the role of Public Order Trainer in 2018.  To be selected and retained as a Public Order Trainer, a candidate must be a currently certified Public Order Instructor.  Public Order Instructors are required to be recertified every three years.  This is a longstanding requirement.

4.      The recertification process involves a fitness test.  This is performed in full public order equipment and the movements represent the strain and movements candidates for training will experience during their training course.

5.      It is apparent from the foregoing that the Complainant could not perform the fitness test required for recertification owing to his disability.  It is respectfully submitted that it would not be realistic or practically possible for An Garda Síochána to provide appropriate measures that would allow the Complainant to be recertified as a Public Order Instructor without seriously compromising the operational effectiveness of the recertification process.

6.      While this is regrettable, given the experience that the Complainant brought to public order matters, it is an unfortunate consequence of his acquired disability and not one which can be considered to be in contravention of the responsibilities placed on An Garda Síochána by virtue of the 1998 Act.

Summary of position in respect of the alleged contravention of section 16(3) of the 1998 Act

1.      It is respectfully submitted that the duties to which the Complainant was assigned were duties that were entirely consistent with the occupational health advice that the Complainant was to undertake strictly non-confrontational duties. Dr. Quigley has provided advices that confirm that, insofar as local management determined that a role would reasonably result in physical confrontation, then such a role would not be consistent with the advices he issued. 

2.      It is respectfully submitted that Supt. Gamble, as the local manager responsible for assigning the Complainant’s duties, had full regard to every aspect of the matter and assigned the Complainant to strictly non-confrontational duties that were meaningful, operationally important and fully consistent with duties that a person of the Complainant’s rank would be expected to perform.

3.      It is respectfully submitted that, regrettably, the Complainant’s disability now renders him operationally unsuitable for carrying out the public order duties for which he previously qualified and that no appropriate measure could reasonably be put in place to remedy this situation.

4.      In the circumstances, it is respectfully submitted that An Garda Síochána has fulfilled its responsibilities towards the Complainant pursuant to the 1998 Act and that it is not in contravention of 1998 Act, whether as alleged by the Complainant or at all.

The alleged contravention of section 14A of the 1998 Act

1.      The Respondent acknowledges that the Complainant feels aggrieved in relation to his interactions with Supt. Gamble during the period when the Complainant served under Supt. Gamble in Midleton Garda Station.  It is regrettable that an officer who is as highly respected as Sgt. Haughney would feel aggrieved in this way.

2.      However, the Respondent denies that the Complainant has made out a complaint that would constitute harassment within the meaning of section 14A of the 1998 Act and / or that would constitute discrimination by An Garda Síochána against the Complainant pursuant to that section.

3.      In a similar way to the highly respected manner that which the Complainant is considered by the Respondent, Supt. Gamble is a highly respected and valued member of An Garda Síochána.  In that regard, the Respondent will rely on the memo of the interview taken from Supt. Gamble on the 23rd April 2021 and that is referred to at Appendix 10 of the Complainant’s written submissions.

4.      It is accepted that Ms. Martine O’Connor BL concluded that the Complainant’s complaint in relation to the meeting of 15th April 2020 amounted to evidence of harassment on the part of the Respondent. 

5.      However, it is respectfully submitted that the Adjudication Officer herein should conduct his / her own assessment of the factual circumstances having regard to the evidence of Supt. Gamble in order to arrive at a decision in relation to the alleged discrimination under section 14A of the 1998 Act.

Oral evidence.

1.Dr Richard Quigley from office of CMO. Dr Quigley gave evidence in relation to the duties of the CMO office and how this was primarily in the areas of fitness for duty, occupational health and the provision of advice on a range of issues. Dr Quigley stated that he was familiar with the complainant and first met him in July 2019, at that point the complainant had been absent from work since May 2019. In September 2019 the complainant was deemed fit for work only on non-confrontational duties and it is for local management to interpret the advice and clarify what duties the complainant could complete.

During cross examination Dr Quigley was asked what does non-confrontational mean to which he replied that it was up to local management.

Dr Quigley was then asked by the Adjudication Officer to consider the complainant’s return to work on two separate occasions, the first occasion being after the complainant had sustained an injury on 14th December 2014 (return to work on 7th December 2015), the second return to work after an absence caused by a detached retina on 30th April 2019 (return to work on 31st August 2019) The question asked of Dr Quigley was in relation to the conditions of the return to work i.e. were the conditions related to the complainant’s return to work the same on both occasions. Dr Quigley replied yes.

2.Garda Karl Burton. Garda Burton is a highly experienced national training co-ordinator based at the Garda College, Templemore. In relation to training in Public Order Garda Burton told of the training content and the need for re-certification. Garda Burton pointed out that the complainant is no longer a Public Order Trainer. Garda Burton also gave evidence in relation to fitness levels required to undergo Public Order training.

The Employment Equality Acts 1998 – 2015 does not require an employer to recruit, promote or continue to employ a person who is unable to perform the duties of the job in question. But that proposition is significantly circumscribed, in the case of disability, by the obligation which the Act places on employers to provide an employee who has a disability with reasonable accommodation, referred to in the Act as “appropriate measures”. The purpose of providing reasonable accommodation is 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,

There is no limitation on the type or category of measures that an employer can be expected to take, provided that they do not involve a disproportionate cost. It can involve effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned. It may, in particular, involve the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration of resources.

The leading authority on the obligations of an employer to provide reasonable accommodation to an employee with a disability is the decision of the Supreme Court in Nano Nagle School v Daly [2019] IESC 63 and [2019] 30 E.L.R 221. Here the Supreme Court clarified the law as follows: -

·        The primary obligation of an employer in relation to an employee with a disability is to take appropriate measures, where required in a particular case, to enable the employee to, inter alia continue in employment.

·        That duty includes an obligation to consider relieving the employee with a disability of such duties as they cannot perform.

·        No distinction should be drawn for that purpose between duties and tasks or between core duties or essential duties.

·        The duty to provide reasonable accommodation does not extend to an obligation to create an entirely new job.

·        A reorganised job is not necessarily a new job. It is a matter of degree to be decided on the facts of the case.

·        A wise employer will consult with the employee with a disability before making decisions about their future employment. However, a failure to consult does not amount to discrimination for the purposes of the Act.

·        The employee with the disability must be fully capable of performing the duties of the position, after it is modified by the application of reasonable accommodation, which can include relieving the employee of the requirement to perform certain duties which they cannot perform.

In the instant case the evidence provided by Dr Quigley was most telling. There were two occasions that the complainant returned to work after a lengthy absence. On both occasions the complainant had to be passed fit by the office of the Chief Medical Officer. On both occasions the return to work was conditional on local management determining if it had available duties that could be assigned to the complainant that did not have a foreseeable risk of exposure to confrontation. In this regard between November 2015 and 2019 three former superintendents supported the complainant to actively carry out his responsibilities and duties with the same degree of competence as before his injury in 2014. The complainant went to great lengths to continue to be an active member of the respondent.

A letter dated 8th March 2021 from the office of the Chief Medical Officer to the Head of HR Directorate and presented at the hearing of the complaint contained the following passage:

“It is considered unlikely that his symptoms would improve in advance of a resolution of the current apparent impasse between himself and his superiors. The resolution of this impasse is stated to be a matter of urgency in terms of the effect it has on Sergeant Haughney’s mental health. It is therefore strongly recommended that some form of mediation, negotiation or other discussions urgently take place. Sergeant Haughney is considered mentally fit to engage in these discussions. However, he is considered mentally unable to carry out his most recent assigned duties in what he considers to be a hostile environment.

Overall, this is considered to be an industrial relations issue. When it is resolved, sergeant Haughney should have a reasonably good prognosis”.

Superintendent Gamble’s interpretation of the advice from the office of the Chief Medical Officer differed greatly from the interpretation of the same advice by three of his predecessors. Superintendent Gamble could have spoken to his predecessors, and I believe should have spoken to his predecessors.

The complaint as submitted by the complainant alleges that the respondent treated him unlawfully by discriminating against him in failing to give him ‘reasonable accommodation’ for a disability. Having heard the evidence of Dr Quigley I believe the discrimination goes further than this. On the return to work after the first period of absence accommodations were provided to the complainant by three different superintendents. These reasonable accommodations were withdrawn by Superintendent Gamble on the second return to work. Treating similar situations differently can give rise to discrimination.

Although not legally required to do so Superintendent Gamble should have consulted with the complainant before deciding what he could and could not do.

The respondent, as per submission, has very clearly stated the following that I accept as genuine and would ask the complainant to also accept this as genuine:

·        The Respondent wishes to state at the outset that the Complainant, Sergeant David Haughney, is a highly respected and valued member of An Garda Síochána.  He has served An Garda Síochána and the State with loyalty and diligence since he joined the organisation in 1990.

·        The Complainant suffered a serious injury when he was assaulted in the course of his duties in December 2014. It is acknowledged that this has had life-changing effects on the Complainant. The Respondent respects the fact that the Complainant has made strenuous efforts to overcome his injuries and to return to his duties. His commitment to his duties has been unwavering and he is only to be commended for this.

·        An Garda Síochána is fully committed to utilising the skills and competencies of the Complainant as a highly experienced Sergeant for the remainder of his career. The Respondent is also committed to ensuring that the Complainant has a fulfilling and meaningful role within An Garda Síochána.

Having fully considered the submissions presented by both parties and the oral evidence from the hearings I conclude that the complaint of discrimination as presented is well founded.

The one incident of harassment took place on 15th April 2020. The complaint form was received by the Workplace Relations Commission on 7th July 2021. This complaint is clearly out of time and therefore is considered not well founded.

As per section 82 of the Employment Equality Act I now order the Respondent to pay compensation to the complainant of 65,000 euro. Such compensation should be paid within 42 days from the date of this decision.

Having fully considered the submissions presented by both parties and the oral evidence from the hearings I conclude that the complaint of discrimination as presented is well founded.

The one incident of harassment took place on 15th April 2020. The complaint form was received by the Workplace Relations Commission on 7th July 2021. This complaint is clearly out of time and therefore is considered not well founded.

As per section 82 of the Employment Equality Act I now order the Respondent to pay compensation to the complainant of 65,000 euro. Such compensation should be paid within 42 days from the date of this decision.

Employment Equality Act 1998. Reasonable Accommodation.