ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00040941

Parties:

Complaint:

Date of Adjudication Hearing:  05/09/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint is that the Respondent discriminated against the Complainant on the ground of disability as he has lost earnings by virtue of his lack of access to overtime.  He also contends that he was victimised and denied reasonable accommodation for his disability.

Summary of Complainant’s Case:

The Claimant is a porter who has worked with the Respondent since July 2005.         His complaint is pursuant to section 77 of the Employment Equality Acts 1998-2015 that the Respondent discriminated against him on the ground of his disability, in the conditions of his employment, failing to provide him with reasonable accommodation and victimising him.  Specifically he seeks relief in the form of compensation for exclusion of overtime.

The Claimant was initially employed as a Theatre Porter, earning an annual salary and on-call allowance, and had access and entitlement to overtime, which was compensated at a rate of time and a half for the first 4 hours and double time for additional overtime after the four-hour period.        In or around February 2012, the Claimant began to suffer depression due to stress he was experiencing in work, and he was prescribed medication.  During 2013 and 2015 he was on sick leave for some periods and on 13 February 2015 he was certified unfit for two months.  His GP requested that he be transferred to a different department.  In April 2015 the Claimant returned to work and was redeployed to general portering.  The result of this was that the Claimant’s access and entitlement to the on-call rate was discontinued.  He acknowledges that he is no longer entitled to this rate as he is no longer performing on-call and he takes no issue with this.  However, almost immediately on his redeployment, the Claimant found that his access and entitlement to overtime was significantly reduced.  In particular, he found that he was offered next to no overtime in the A&E and Endoscopy Departments which other general portering staff were in receipt of and which his comparators were in receipt of since his redeployment.    The Claimant’s income diminished as a direct result and continues to be well below that which he received before he raised his concerns and requested reasonable accommodation.  The Claimant asserts that said reduction occurred as a direct consequence of his having been redeployed due to a disability.  He is unaware of any legitimate and non-discriminatory reason for his access and entitlement to overtime being diminished to this extent.  To that end, the Claimant maintains that the comparators who are deployed as porters within both theatre and general portering continue to have access to overtime.            The Claimant maintains that same amounts to discrimination.

The comparators relied upon are:

Mr G and Mr RG, Theatre Porters

Mr M, Mr D and Mr B, General Porters.

The Claimant in summary submits that:

He suffers from a disability;

As a direct consequence of that disability and with his agreement he was moved from Theatre Portering to General Portering;

As a result of this, whether by way of penalisation, direct discrimination or indirect discrimination the Claimant’s access to overtime was stopped;

The Claimant’s colleague Mr M, who does the same job as the Claimant and is similar to the Claimant in all other respects save that he does not have the Claimant’s disability, continues to receive both overtime and on-call rate.

The Claimant seeks compensation and back-pay for the discrimination to which he has been subjected.

Legal submissions were made on the definition of discrimination, definition of disability, knowledge of the disability and the discharge of the burden of proof.

The Complainant gave sworn evidence in which he outlined his losses over the years from 2015 when changes came in.  There was a lot of overtime available up to 2015 and usually it would fall to the longest serving staff.  Now there are many agency workers and there appears to be a different system.  The Complainant stated that he had a problem with an ADON in 2014 and there were many meetings with her.  He contends that following an incident, she engaged in a ‘witch hunt’ regarding himself.   His brother works as a General Porter but received a lot of overtime in Theatre and the Complainant feels aggrieved that he has been not been called on to do overtime.

Summary of Respondent’s Case:

The Complainant is an employee of the Respondent and was initially employed as a Theatre Porter but before moving to a role as a General Porter within the Pharmacy at University Hospital Waterford (hereinafter “UHW”). Despite this move, the Complainant continues to be remunerated in accordance with the Theatre Porter pay scale.

The Complainant alleges that by virtue of his transfer from Theatre Porter to General Porter he has been directly and/or indirectly discriminated against and / or victimised.

Specifically, it is alleged that the reduction in overtime hours available to the Complainant following his move to General Porter amounts to discrimination due to a disability which the Respondent has failed to reasonably accommodate.

The Complainant commenced employment with the Respondent as a Theatre Porter in July 2005.  In or about February 2012 the Complainant submits that he commenced suffering from stress.  Between 2013 and 2015 the Complainant continued to suffer from stress and following the advice of Occupational Health, the Complainant agreed with the Respondent to be redeployed from his role as a Theatre Porter to a role as a General Porter in or about 10th April 2015. 

In or about January 2020, the Complainant was one of a number of hospital porters who raised concerns with the Respondent via their trade union, UNITE. Following extensive engagement, during which the Respondent sought input from the relevant porters (including the Complainant), an amended staffing rota was developed. The Complainant was among a minority of porters who did not want to move to the new rota and who were further accommodated by facilitating a Monday to Friday (8 to 4) rota instead.

On 29th November 2019 the Complainant filed a WRC complaint alleging discrimination under the same basis as the within Complaint.  The Complainant subsequently withdrew that complaint in December 2021.  The Complaint now seeks to reintroduce the same allegations.

Burden of proof

Section 85A (1) of the EEA provides as follows:- “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.”

Section 85A of the EEA provides that where a complainant in discrimination proceedings establishes facts from which it may be presumed that there has been discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. This has been addressed in detail in Mitchell v. Southern Health Board [2001] ELR 201 and Cork City Council v. McCarthy EDA0821. It is clear from the case law however that unsubstantiated generalisations will not be sufficient to establish a prima facie case. In Melbury Developments Ltd v. Valpeters EDA 0917 [2010] ELR 64 the Labour Court stated as follows:

“Section 85A of the Act 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.”

It is submitted that the Complainant must prove, on the balance of probabilities, the primary facts as alleged in order for the burden of proof to shift to the Respondent to show that no discrimination as alleged arose.

With regard to the Complainants allegation of discrimination, the Respondent respectfully submits that the Complainant has only identified one valid comparator in his submissions claim and that the remaining four fail to meet the requirement for establishing discrimination pursuant to section 6 of the EEA.  Three of the comparators are Theatre Porters and one is a Porter in X-Ray.  The one comparator who is a General Porter does not receive an on-call allowance.  Figure presented for overtime in 2021 showed that the one valid comparator (Mr D) earned no overtime, while the Complainant earned €502.81.

The Respondent submitted a spreadsheet which reflected the absence of discrimination in the treatment of the Complainant versus his comparators.   It is further submitted that the figures for losses are grossly inflated as they contain figures for on-call allowance, an allowance that does not apply to him from 2015 when he agreed to move from a role as Theatre Porter to General Porter.

Sworn evidence was given by the HR Manager.  She outlined the roles of Theatre Porter and General Porter and the general rules for covering for overtime.  The Complainant moved from Theatre in or around 2015 but retained his Theatre Porter salary.  In 2020/2021 there was an agreement with Unite regarding rosters.  The Complainant and some of his colleagues wished to retain the 8-4, 9-5 rosters and were accommodated in this.  The Complainant was recommended by Occupational Health to be redeployed from Theatre to General Porter due to stress caused and it would require some confirmation from Occupational Health that he would be fit to work in Theatre if he was to be rostered for overtime there. 

Findings and Conclusions:

According to the Complainant’s submission, the history in this case goes back to in or around 2012 when the Complainant began to suffer from depression due to stress he was experiencing at work.     As a result, he transferred from Theatre to General and now is in Pharmacy.  He retained his Theatre Porter salary, does not receive an on call allowance, and does not receive overtime similar to which he received in Theatre.  It is common case that on call does not apply in his current role and there is not a lot of overtime available in the current role.   It appears the Complainant is happy in his current role in Pharmacy but wishes to be called in for overtime in Theatre.  The Respondent cannot accommodate this in the absence of medical certification that his health and well being would not be put at risk.  The Complainant was clearly advised of this by letter from the HR Manager on 10 July 2020.  

The Complainant has submitted a complaint under the Employment Equality Act 1998 (as amended) and the issue for investigation in this case is whether there has been discrimination as defined in the Act.

The applicable law

Section 6 (1) of the Act states:

“(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,     

(iii) may exist in the future, or

(iv) is imputed to the person concerned..

Section 6 (2) (g) states:

(2)  As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act are –

(g)   that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”).

There is no dispute that the Complainant suffers from a disability.  It was this disability that caused him to be transferred from Theatre to General as his health and wellbeing was at risk.  In this instant case the Complainant submits that he has been treated unfairly in relation to the distribution of overtime.  In order to succeed, the Complainant must establish facts from which it may be presumed that there has been discrimination.  The Complainant has cited comparators who he contends received more overtime than him in the past few years.  The Respondent argues that the comparators cited are not valid as, with one exception, they are not working in the same area as the Complainant.  In accordance with the definition of discrimination, as contained in Section 6 of the Act and as quoted above, an appropriate comparator is a person in a similar role who does not have a disability or a person who has a different disability.  The Complainant wishes to be compared to others in a similar role who earn overtime.

Accordingly, the issues for decision in this case are:

      (i)            Whether or not the Complainant was subjected to discriminatory treatment on the grounds of disability in relation to his conditions of employment.

    (ii)            Whether or not the Respondent failed to provide the Complainant with reasonable accommodation contrary to Section 16 of the Acts.

    (iii)            Whether or not the Complainant was subjected to victimisation contrary to Section 74(2) of the Acts.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.

Burden of Proof

This entails an examination of the issue of whether the Complainant has established a prima facie case, that is the establishment of facts from which the burden of proof, which lies in the first instance with the Complainant would shift to the Respondent.

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof 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 her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must:

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.             It is only if 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 was no infringement of the principle of equal treatment”.

The Complainant contends that he was subjected to discrimination on the grounds of his disability and it is alleged that, as a result of his disability and having transferred from his role, he suffered a loss of earnings in relation to overtime.

The facts as submitted by the Complainant in this instant case, are that 5 of his co-workers constitute comparators.  Two are Theatre and three are General Porters.  The Respondent submitted that only one of the Porters cited can be deemed a valid comparator and that individual did not earn overtime in 2021 whereas the Complainant did earn €502.81 in the period.

In simple terms, the Complainant wishes to retain his position as General Porter, on a salary of Theatre Porter, working the 8-4, 9-5 shifts and then to be called in to Theatre Portering when overtime is available.  Others, to whom he compares himself are not in a similar position and in some cases, are not benefitting from the special arrangement he has for a day shift.  This, in my view is not establishing facts from which it may be presumed that the principle of equal treatment has not been applied to him.   I find that he has not established a prima facie case and his complaint of discrimination on the ground of disability is not well founded.

Victimisation

The Complainant also claimed he was victimised by the Respondent. 

Section 74 of the 1998 Act provides:

(2) For the purposes of this part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith –

(a) sought redress under this Act, or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any repealed enactment),

(b) opposed by lawful means an act which is unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or given notice of an intention to do anything within paragraphs (a) to (c).

In the case of Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out. It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant.

The Complainant, in this instant case believes he was penalised for having transferred from Theatre to General Portering and as a result was at a loss of overtime previously earned.     

I find no action was taken that constituted a ‘protected act’ and the Complainant’s complaint of victimised is not upheld.

Reasonable Accommodation

The Complainant claims he was not provided with reasonable accommodation for his disability in relation to his wish to do overtime.

Section 16(3) of the Acts sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment.  

Section 16 of the Act provides:

(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties, if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.

(b) an employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.

(c) a refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed to be reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.

In this instant case, the Complainant was reasonably accommodated in 2015 when he was transferred from Theatre and kept his Theatre salary.  He was then reasonably accommodated when he opted to work day shifts 8-4 and 9-5.  I find that if the Respondent was to manufacture overtime for the Complainant, it would give rise to more than a nominal cost and I find that the Respondent has not acted in breach of Section 16 of the Act.

The Complainant’s complaints are not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Based on the findings above, I have decided that the Complainant’s complaints are not well founded, and the Respondent has not discriminated against him on the ground of disability.  

Dated:   26/10/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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