Complainant

Respondent

Parties

Edward  Bourke

Kilkenny County Council

Representatives

SIPTU

Local Government Management Agency (LGMA)

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-00055950-001

06/04/2023

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

CA-00058504-001

25/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00060124-001

20/11/2023

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

CA-00060124-002

20/11/2023

The Complainant claims to have been discriminated against on the disability ground in relation to ‘conditions of employment’, ‘access to employment’, ‘training’, ‘promotion’ and ‘other’. The Complainant also claims that the Respondent failed to provide him with reasonable accommodation. Further, the Complainant claims to have been penalised in circumstances amounting to victimisation contrary to the Employment Equality Acts 1998-2015. The Respondent disputes these claims.

Evidence of the Complainant (under oath)

The Complainant outlined that he commenced employment in 1997 as a life guard and swim instructor. He remained in that position for 16 years. During that time he had responsibility for rostering and supervising of staff and he performed clerical duties. The swimming pool closed in 2009 and the Complainant was given five or six redeployment options. The Complainant was assigned to the traffic section but graded as a ‘Roads Foreman’ for salary purposes. He did not perform a maintenance role at any time. The Complainant outlined that he had responsibility for pay & display parking machines and was allocated an office and a vehicle. He worked primarily indoors. His daily duties included collecting money from pay and display machines; returning to the office to count that money and bag it; complete spreadsheets; and taking the cash to the town hall.

There had been talk for a considerable period about replacing cash pay & display machines with card machines. In 2022 the Complainant learned on social media that the cash machines were being replaced. He was aggrieved that after 30 years’ of service, the Respondent did not directly advise him of this. The Complainant requested a meeting with management concerning the matter. A meeting was held on 6 September 2022. The Complainant was offered a traffic warden role. His salary would be recircled. The Complainant outlined that this was “a non-runner” for him. First, it was a demotion. Second, he was very well known in Kilkenny and he would not be able for the hostile work environment involved in that role. The Complainant described the role of traffic warden as “scary and undesirable” and “warden’s experience constant abuse. I’ve seen people hit over the head, I wouldn’t have a window left, I couldn’t go out to socialise with my wife, I’ve seen people get comments like ‘that’s the f***** that gave me a ticket”. The Complainant received a letter on 4 November 2022 from HR instructing him to attend for work as a traffic warden at 8.30am on 11 November 2022. The Complainant submitted that the role was completely unacceptable to him. Further, the start time for that role also represented a change in his working hours. 

The Complainant outlined that after 14 years of him doing a pay & display collection role, he was now displaced. He was left in the yard with nothing to do from September until November 2022. The office he used was locked and his vehicle was moved to the machinery yard. The Complainant asked his supervisor, ‘Mr B’ (who was the Supervisor of the traffic section) what was happening. His supervisor told him that he did not know. The Complainant outlined: “I felt so disillusioned and disappointed that after 30 years’ service I was left with no job and nowhere to go. I didn’t ask for this trouble or the mental anguish it gave rise to”. The Complainant went on sick leave as he was stressed. The medical certificate submitted to the council stated the absence was for ‘work related stress’. In response to questions from the Adjudication Officer, the Complainant clarified that he was experiencing anxiety and high blood pressure in November 2022 and for the duration of his sick leave. He also clarified that he did not have a mental health disability prior to November 2022. The council scheduled an occupational health assessment for him in January 2023.

The Complainant remained on sick leave for the next 17 months. During that time positions in housing (indoor maintenance) and clerical roles were available and SIPTU wrote to management on his behalf asking why he was not considered for these roles. His supervisor, Mr B, was also impacted by the privatisation of pay & display machines but, “because he was not on sick leave, he got sorted”. The Complainant outlined that because he was on sick leave,  he “was out of sight, out of mind”. The Complainant attended four or five occupational health appointments since 2022. Occupational health said that “the issue could only be resolved in work and that it was not a medical issue. They were saying I’d never feel well and be fit to resume duties until things were resolved in work”.

On 1 March 2023, Ms Phelan wrote to the Complainant following a review of vacant positions. Three vacant roles were brought to the attention of the Complainant as follows: (i) Light Equipment Operator; (ii) Craftsperson; and (iii) Driver Plant A. The role of “Light Equipment Operator” was not suitable as it was an entry level job in the council and represented a demotion “by several levels”. The Complainant did not have a craft so the craft vacancy was not suitable. The Driver A position would involve “driving a crew around and then I would be down in the trenches, outdoors, pulling pipes”. This too represented a demotion and a loss of status. The Complainant outlined that he had never worked in traffic before, and that he “wouldn’t expect to do that job even 15 years ago, I have 30 years’ service”.  An Engineer was being hired but “they felt we weren’t clever enough for that job”. Further, the role of Driver Plant A required a licence which he did not have. He was being offered jobs that he did not have the necessary qualifications for. The Complainant outlined “then they offered me training. I said I’d never done construction and I wasn’t willing to do it. I was 52 years old. I had never done that work before and I’d be going from indoor to outdoor at that stage. I wanted a comparable role – a staff officer or clerical officer. Even though I was paid an outdoor rate, I never worked outdoor. I wanted a job indoor and they were offering me all out-door positions and roles that I had no experience of”. Two foremen positions became available but the Complainant was told that he would have to compete for these roles like everyone else. The Complainant submitted that it was “outrageous that he would have to compete with everyone even though he had been displaced”. A Head Gardener role was also available which he would have been interested in but he was not considered for that either. The Complainant outlined how “there was a condition applying to everything I was being offered and everything being offered was below my level”.

The Complainant described how stressful this was for him and his family; the considerable impact it had on his mental health; and the knock-on effect for his finances. He had exhausted his savings and described the stress he felt trying to manage bills on social welfare.

The Complainant outlined how the council were able to redeploy two other colleagues from the landfill section. They were not asked to compete for the positions they were moved to, instead they were just given them. The Complainant outlined to the hearing the reasons he believed they were redeployed. The Complainant submitted that he was willing to do a temporary position of grass cutting to alleviate the financial pressure on his family but this was also refused because the council said they were privatising that work. Instead the council continued for months to offer the same positions, attaching the same conditions even though the Complainant had repeatedly stated that those positions did not suit him for various reasons. All of this was exacerbating his fragile mental condition and adding to the stress and anxiety that he was experiencing. ‘Mr B’ was left in his position and was not displaced. The Complainant submitted “after 30 years’ service I don’t think that I should have to worry about getting qualifications or passing driving tests or competing for open positions”. The Complainant added he “was very active in the union and that’s the reason for the unfavourable treatment. I made videos regarding bullying. This is why they were trying to demote me and force me back to Gaol Road”.

The Complainant submitted that he then “proposed ‘Driver B’ as I didn’t want to be down with a jack hammer in the trenches. Then they relented and considered Driver B”. This was offered in December 2023. It is regarded as a professional role and does not involve manual labour. It would take four months to get the licence and the original proposal was that the Complainant would work in the position of traffic warden while he was getting his licence but then the council relented and lifted the requirement to work as a traffic warden pending getting the licence to become a Driver B.

In cross-examination, the representative for the Respondent opened Appendix 3B of the Complainant’s submission. It was put to the Complainant that the consultation process in relation to the proposed redeployment to traffic warden was stopped at the request of the Complainant. The Complainant responded that there was nothing proposed about it, he was being told to do it and that he was not going to engage with the Respondent because he was extremely sick. It was put to the Complainant “this email is dated 7 October 2022 you weren’t even out sick then?”. The Complainant responded that he “was being paid but was in limbo”. The Complainant accepted that on that date he instructed his union not to engage with the Respondent any further. The Complainant stated that he didn’t know what date he was certified sick in November; he agreed that all certs submitted stated he was unfit for work; and that “they wanted to make me a traffic warden and they knew of my mental health and that would drive my stress levels up”.

The Complainant was asked did he accept that the Respondent engaged with the union in December 2022 and every month thereafter regarding his redeployment and possible alternative roles, to which the Complainant responded “yes, but every job they offered were demotions and/or had conditions attached to them”. The Complainant was asked “but do you accept there was engagement?”, to which the Complainant responded “yes, but after 30 years I wasn’t going backwards”. The representative for the Respondent took the Complainant through a table contained within the Complainant’s written submission. The Complainant was asked what specific roles he was proposing in ‘housing’ or ‘indoor’ as indicated in the table. The Complainant responded: “well that was up to the council, they displaced me”. The Complainant agreed there was no specific role in housing or indoors at that time. The Complainant was asked at the time he proposed a ‘Driver B’ position whether he had the licence for the role. The Complainant responded “no”, but this is what he meant by there always being a condition applying to everything he was offered or everything he proposed. It was put to the Complainant that there was no foreman vacancy at the time he proposed this. This was denied by the Complainant. The Complainant accepted that he did not have the qualifications for the clerical vacancies but that he did do this type of work before and that was not taken into consideration at any stage. The Complainant was asked did he consider proposing going in at entry level in housing. He responded “no” but he would have considered an entry position if it was an indoor role.

It was put to the Complainant that the evidence of the Respondent would be that Mr B’s role was never at risk and he has continued in his role as normal. This was denied by the Complainant. The Complainant accepted that he did not ask for any specific training in 2023. It was put to the Complainant that the roles proposed by him such as Head Gardner, Climate Change Officer, and Housing (Craft) were all roles he did not have the necessary qualifications for. The Complainant responded that there was always a condition being put in his way but confirmed that he did not want to do anything outdoor. The Complainant added that he was “told on every occasion that there was nothing, no vacancies because ‘Eddie spoke up’, therefore I wasn’t going to be accommodated. I was hoping they would propose something comparable”. The Complainant agreed that he did not apply for any open or promotional posts in 2023.

The Complainant was asked to outline how he was discriminated against on the ground of disability. The Complainant responded “I was left out on sick leave. I was an afterthought. There was no consultation after they displaced me. I heard on the street my job was gone. That was unacceptable after 30 years. I suffered stress after I was displaced”. The representative for the Respondent asked: “what was the unfair treatment on grounds of disability, your job was privatised, do you accept that?” The Complainant responded “Yes, but I was the last one to hear of it and [Mr B] is doing part of my job now”. The Complainant was asked to explain in what other ways he was discriminated against on the ground of disability during 2023. The Complainant responded “I was out of sight and out of mind because I was on sick leave. I wasn’t given any respect after 30 years. The Council didn’t treat me right. [Mr B] was treated more favourably because he was in work and could fight his corner”. In response to the question of how and when the Complainant felt he was victimised, the Complainant responded: “Because of union activities and because of mental health grounds since I went out on sick leavein November 2022”.  

It was put to the Complainant that his complaints before the WRC were all about the redeployment, to which the Complainant responded “I suppose so. All I wanted was something comparable, that’s all I wanted. I have been displaced and I became an afterthought and I was victimised because of my mental health”. It was put to the Complainant that not all positions offered to him were conditional. The Complainant responded, “but they were demotions”. In response to whether he had asked for reasonable accommodation, the Complainant opened correspondence from the Union where he asked to be paid pending redeployment. The Complainant stated that he was too mentally exhausted and distressed to pursue it himself after April 2023. The Complainant submitted that his reasons for not meeting Ms Phelan following her request for same, was because nothing had changed in so far as the council kept offering the same positions that were unacceptable to him. It was put to the Complainant that the Driver B position was offered as early as March or April 2023 by the Respondent. The Complainant responded that almost everything offered were “non-runners”.

Closing Remarks

In closing, it was submitted on behalf of the Complainant that the Complainant has a recognised disability within the meaning of s 6(a) of the Employment Equality Acts. The Respondent is in breach of s 8(1) of the Employment Equality Acts which prohibits discrimination against an employee in relation to access to employment; conditions of employment; training; promotion and re-grading. The Respondent is in breach of s 16(3)(a) and (b) as they failed to provide reasonable accommodation and appropriate measures. Further the Respondent has victimised the Complainant by repeatedly offering unsuitable positions; failing to offer viable comparable positions; and by placing conditions on his return to work. Repeated attempts were made by the union to resolve the issue to no avail. The Complainant was ignored for long periods of time and he was left completely in the dark as to whether he was going to return to work. There was no real consultation, no agreement and no choices open to the Complainant. The only training offered to the Complainant was violence and aggression training which would do nothing to prevent the conflict the Complainant was trying to avoid given his anxiety.

The Complainant’s written submission set out the applicable law with respect to discrimination on the ground of disability. A Store and A Worker EDA1629; Daly v Nano Nagle [2019] IESC 63; and Executive Assistant v A University ADJ-00022851 was cited with respect to the requirements on an employer regarding reasonable accommodation.  ESB v International v Mumtaz (EDA1935) was cited with respect to the need to consider motive or reasons for adverse treatment. It was submitted that in cases of less favourable treatment, a comparator may be actual or hypothetical (Henry Denny v Rohan, EDA1310). The Complainant was required to undertake duties beyond his mental capacity as a condition of continuing employment: he should have been treated differently and accommodations made (Campbell Catering v Rasaq [2004] ELR 310). The Respondent made it impossible for the Complainant to return to work given his disability (ADJ-0037941 and ADJ-00028572).

Evidence of Ms Marie Phelan (under affirmation)

Ms Phelan is a Senior Executive Officer with the council. She commenced employment with the Respondent on 16 January 2023, and took responsibility for the Complainant’s grievance after this date. Appendix 14 of the Respondent’s submission was opened to the hearing. Ms Phelan outlined that her predecessor had a meeting with the Complainant in September 2022 regarding the privatisation of his role (Cash Collection and Frontline Maintenance Officer in the Traffic Department of Kilkenny Borough Council) and the proposal to redeploy the Complainant to the role of traffic warden with his terms and conditions ringfenced. He also wrote to the Complainant on 4 November 2022 to advise him that he was being redeployed to the role of traffic warden with effect from 11 November 2022. The Complainant went on sick leave in November 2022. He was referred to occupational health for a medical assessment on 16 January 2023. Occupational health certified the Complainant as unfit for work. The Complainant was informed in writing of the existence of Employee Assistance Programme. Ms Phelan’s predecessor had a meeting in January 2023 with the Complainant’s union representative regarding the Complainant’s redeployment to the position of traffic warden or community warden but these roles were dismissed by the union as unsuitable.

Ms Phelan met with the Complainant’s union representative on 16 February 2023. She agreed to review and communicate all vacant positions. On 1 March 2023 Ms Phelan emailed the union representative outlining the following vacancies: Light Equipment Operator; Craftsperson; and Driver A. She advised that evidence of relevant qualifications would be required, and that the Complainant was also free to apply for any publicly advertised roles. The option of a redundancy payment was also raised by the union representative but no decision was given by the council in relation to this.

The union responded to the email on 3 March 2023 to advise that the Light Equipment Operator vacancy was not suitable, and to confirm that the Complainant did not have a trade. Further information was sought in relation to the Driver A position. The union queried why a Driver B position in the Gaol Road was not listed. Ms Phelan outlined to the hearing that there are no Driver B positions at the Gaol Road. Driver B positions are engaged in the machinery yard only. The union queried what foreman positions were due to become available. Ms Phelan stated that the union were advised that no foreman positions were due to become available.

On 11 April 2023 the union responded to say they were open to exploring the Driver A vacancy. The Complainant sought information regarding Foreman roles, but these were craft positions and the Complainant did not have a trade.

The union sought restoration of the Complainant’s pay pending his successful redeployment. Ms Phelan submitted that this could not be done as the council is obliged to follow the Sick Pay Circular. In January 2023 the Occupational Health Physician had recommended a review of the Complainant within 6 weeks of that date. This did not happen within that timeframe as the parties were engaged in discussions on redeployment options and Ms Phelan felt that the option of Driver A was being seriously considered by the Complainant. Ms Phelan outlined to the hearing the various correspondence between the union and her thereafter. Ms Phelan submitted that the overarching theme of all this correspondence was redeployment and not reasonable accommodation.

The Complainant was scheduled to attend occupational health on one occasion but did not attend. He did attend a scheduled assessment on 27 July 2023. He was certified as unfit for work. The doctor was of the opinion that the issue was mainly an IR/HR issue. Ms Phelan sought a meeting following this assessment. The parties engaged in mediation in the following months.

Throughout 2023 the Respondent considered all the positions proposed by the union. With respect to the persons moved from landfill positions, the second person was redeployed following an open competition. Ms Phelan outlined that a Business Plan was completed in January 2023 and Mr B’s role as Traffic Supervisor remained as part of that plan and therefore his position was unaffected by the privatisation.

In cross-examination, it was accepted by Ms Phelan that when the Complainant was certified as unfit for work that he had a disability. Ms Phelan confirmed that she did a review of the Complainant’s work history and that she learned from this that the Complainant was engaged in an outdoor position in the traffic section. She confirmed that she was not aware that the Complainant was a qualified swim instructor and coach. Ms Phelan submitted that she had considered his redeployment based on the role he was occupying at the time of the redeployment need arising, and that he had no supervisory or management experience in that role. Ms Phelan accepted that she was not fully aware of the Complainant’s full work experience with the council. Ms Phelan was asked why she confined her analysis to outdoor positions, to which Ms Phelan responded “I didn’t. I looked at all available positions”. Ms Phelan submitted that she examined any indoor positions proposed by the union vis-á-vis the Complainant’s current role. Ms Phelan was asked if she was aware that the Light Equipment Operator was a demotion for the Complainant. Ms Phelan submitted that the position was listed in an email to get the consultation process started. It was put to Ms Phelan that the Complainant was “being offered roles that were humiliating and degrading to him and yet those roles were repeatedly offered, why did you not accept that those roles were not an option?” Ms Phelan responded, “because his job was gone and he needed to come back to some position”. Ms Phelan was asked “why offer him a craft position when you know he wasn’t qualified?” Ms Phelan responded that she did not know he did not have a trade but when he confirmed this, that role was no longer tabled.

Ms Phelan confirmed that she never asked the Complainant what qualification he had. When asked if she accepted that the three positions offered initially to the Complainant were exacerbating his medical condition, Ms Phelan responded that she was “trying to keep options open for Eddie to return to work”. In response to the question of why she had not considered him for Driver B, Ms Phelan responded that she understood that the Complainant wanted to work at Goal Road and that there were no Driver B positions there. However, Driver A was proposed with a view to him progressing to a Driver B position. Ms Phelan was asked why the condition of taking up the role of traffic warden became a condition of redeployment to Driver B, a condition which was ultimately removed thus allowing the Complainant to eventually return to work. Ms Phelan responded that she did not think of that at the time. Ms Phelan confirmed that she did not think of training the Complainant for the Gardner position as he had no working landscape knowledge but confirmed that she assumed this rather than checking with the Complainant. She confirmed that she did not consider it as a temporary measure either. Ms Phelan confirmed she was aware of the mental health difficulties the Complainant was experiencing and that is why she genuinely tried to help him to get back to work. In response to the efforts made to reasonably accommodate the Complainant, Ms Phelan said she thought that Driver A was a viable option for the Complainant and that he was seriously considering that position. Further he always had access to the Employee Assistance Programme. Ms Phelan added that there was nothing in the medical reports regarding any reasonable accommodation required. Ms Phelan confirmed that there was no exploration of life guard positions even though these positions were available. 

Written Submission and Closing Remarks

No case has been made in relation to discrimination on grounds of ‘other’ or promotion and conditions of employment. The Complainant’s evidence is that he was victimised for his union membership, not on grounds of disability. The Complainant has failed to establish a  prima facie case of discrimination. It is not in dispute that for 17 months the Complainant was certified as unfit for work. This is a case concerning redeployment, not discrimination on grounds of disability. The Complainant rejected all offers of redeployment because he felt they were not at his level. This was nothing to do with his medical condition. The union may have said the latter, but no medical doctor agreed. Two written submissions were presented on behalf of the Respondent which, inter alia, directed the hearing to the following cases: Melbury v. Valpeters EDA/0917; Minaguchi v. Winesport Lakeshore Restaurant DEC-E2002-20; and Caitriona Hughes v National College of Ireland ADJ-00014991.

Relevant Law

The Employment Equality Acts 1998-2015 (“the Acts”) prohibit discrimination on nine grounds, including the ground of disability, and prohibit penalisation in circumstances amounting to victimisation.

Definition of Disability

Section 2 of the Acts defines a disability as:

“(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.”

Prohibition on Discrimination

Section 6(1)(a) of the Acts provides discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds set out in s 6(2) including at (g) “that one is a person with a disability and the other either is not or is a person with a different disability” (i.e., “the disability ground”).

Section 8(1) of the Acts provides that an employer shall not discriminate against an employee or prospective employee in relation to inter alia (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, and (d) promotion or re-grading.

Access to Employment

Section 8(5) of the Acts provides:

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.”

Conditions of Employment

Section 8(6) of the Acts provides:

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

Training

Section 8(7) of the Acts provides:

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.”

Promotion

Section 8(8) provides:

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.”

Nature and extent of employer’s obligations in certain cases

Section 16(1) of the Acts provides:

“ Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

Reasonable Accommodation/Appropriate Measures

Section 16(3) of the Acts provides:

“(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—(i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training, unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

(4) In subsection (3) ‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself”.

Comparators

Section 28 (1)(f) of the Acts provides:

“For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows: . . . in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities”.

For a person with a disability to establish that they were discriminated against because of their disability, they must provide evidence of being treated less favourably than another person is, has been or would be treated in a comparable situation on grounds of their disability and that the person in the comparable situation has no disability or has a different disability to them. The Labour Court has previously held that when no similar employee is available for comparison, it may allow the employee to reply on a hypothetical comparator. Where a comparator is referenced, a successful claim will require demonstration of discrimination on the ground/s alleged.

Victimisation

A claim of victimisation must be assessed independently of the allegation of discriminatory treatment. Section 79(1) of the Acts provides that where a claim of discrimination and a claim in respect of penalisation in circumstances amounting to victimisation have been made, the WRC is required to decide on each of the claims.

Section 74(2) of the Acts defines victimisation as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs 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 or the said Act of 2000 or which was unlawful under 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 Department of Defence v. Barrett EDA1017, the Labour Court held that the definition of victimisation at s 74(2) “contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

What constitutes a protected act is defined, at s.74(2) (Paragraphs (a) to (g) inclusive, as set out above).”

The act or acts which result in victimisation must be connected to a reliance on rights under the Employment Equality Acts 1998-2015. In Moriarty v. Dúchas DEC-E2003-013 the Equality Officer outlined that it “is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”.

Burden of Proof

Section 85A(1) and (4) of the Acts provides:

“(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.”

“(4) In this section "discrimination" includes . . . (b) victimisation . . . . ”

Findings

The Complainant claims both to have been discriminated against on the disability ground and to have been penalised in circumstances amounting to victimisation. The Complainant must establish both the primary facts upon which he relies and that those facts are of sufficient significance to raise an inference of discrimination. I am satisfied that the facts relied upon by the Complainant are of sufficient significance to support the inference contended for by the Complainant, and therefore the burden of proof shifts to the Respondent to show that no unlawful discrimination took place.

Claim of Discrimination on the Ground of Disability

I must first decide if the Complainant suffered discriminatory treatment on the ground of disability in relation to: ‘conditions of employment’, ‘access to employment’, ‘training’, ‘promotion or re-grading’ and ‘other’.  

The following was not contested:

1.      The Complainant was assigned to the traffic section.

2.      The Complainant’s role was privatised in September 2022, and the Complainant was told at this time that he would be redeployed to the position of Traffic Warden.

3.      The role of Traffic Warden was rejected by the Complainant.

4.      On 7 October 2022 the Complainant’s union representative wrote to management to say the Complainant and the union representative would not be attending any further consultation meetings in relation to the redeployment.

5.      On 4 November 2022 the Respondent wrote to the Complainant, acknowledging the union’s position, and advising that the Complainant would therefore be redeployed to the role of Traffic Warden with effect from 11 November 2022.

6.      The Complainant was certified as unfit for work from early November 2022 and he remained on sick leave until agreement was reached on the Complainant’s redeployment in early 2024.

The Complainant confirmed that he did not have a mental disability until November 2022 when he was diagnosed with ‘generalised anxiety disorder’. He also submitted that he had depression during his absence from work. The Respondent accepted that from November 2022 the Complainant had a disability for the purposes of the Acts. Therefore for the purposes of my inquiry, I am concerned with the treatment of the Complainant from early November 2022.

It is the Complainant’s case that the Respondent’s failure to redeploy him to a suitable job was an act of discrimination on the ground of his disability. This was refuted by the Respondent, who submits that the real issue was the Complainant’s redeployment, and that there was no discrimination on the ground of disability. 

I find there is no evidence to support the Complainant’s contention that he was discriminated against on the ground of disability in relation to ‘access to employment’, ‘training’, ‘promotion or re-grading’, ‘conditions of employment’ and ‘other’ for the reasons set out below.

During the Complainant’s absence on sick leave there was meetings between the union and management and several written communications spanning the months of 2023. These emails and letters were opened at the hearing. In the correspondence from management, several positions were offered to the Complainant. In the replying correspondence from the union, these redeployment opportunities were rejected on the grounds that either: (i) they were not comparable suitable positions, and/or (ii) there were conditions attaching to them (such as the requirement for a licence or a craft or the requirement to work at a lower level while training for a licence). The Complainant also queried why management failed to consider the Complainant for in-door positions and other vacancies such as clerical roles, the role of Head Gardner, and in-door roles in Housing. In response, HR stated that the Complainant was employed in an out-door role prior to the redeployment; there were no vacancies in areas proposed by the Complainant; and for some roles the Complainant would have to apply for the role and be interviewed for same. The Complainant gave evidence at the hearing that the positions being offered were below his level and not comparable. The Complainant submitted to the hearing that he did not want a demotion. He did not want an out-door job. He did not want to have to apply for an ‘open job’ after decades of service. Further, he did not feel that after 30 years’ service he should have to worry about qualifications or passing driving tests. He felt it was outrageous that he was required to apply for jobs given it was the Respondent who had displaced him. The Respondent submitted that it was trying to get the Complainant back to work; that it offered comparable positions; and that the conditions attached to any position were valid (such as requiring a licence or a craft or qualifications for the post).

I find that the roles offered to the Complainant were the only viable positions available at the time. I agree with the Complainant that the Respondent, on occasion, advised the Complainant of vacant roles on the basis that he may have had the qualifications for same (for example, the craft vacancy), and yet, on other occasions, failed to advise him of roles which they assumed he did not have the qualifications for (for example, the Head Gardner role), but I am satisfied that this was not done because of the Complainant’s disability or in an effort to exacerbate his disability. I am satisfied that the Respondent was engaged in a sincere effort to get the Complainant back to work. I accept that while some of the positions offered, both before and after the Complainant developed a disability, constituted a demotion for the Complainant and were undesirable to him, I am satisfied that these positions were not offered to the Complainant because he had a disability. I note also that all occupational health reports certified the Complainant as fit to engage with the Respondent with respect to the Complainant’s redeployment and his concerns regarding same.

I do not accept the Complainant’s submission there was no real consultation, no agreement and no choices open to the Complainant. There was consultation. Redeployment options were put to the Complainant. They were simply not suitable to him. For a protracted period the Complainant was only willing to return to work on his terms. I do not accept that the Complainant “was left out on sick leave”. It was common case that both the Complainant’s GP and occupational health repeatedly certified the Complainant as unfit for work. I accept that the failure to agree on a suitable redeployment opportunity prolonged that absence and did not help the Complainant’s mental health, but I do not find that the Complainant was treated less favourably because of his disability. Nor do I accept the submission of the Complainant that, because of his disability, he should have been treated differently than he was.

I do not find that the Complainant was treated unfavourably compared to the two colleagues redeployed from the landfill section. The Complainant also claimed that he was treated less favourably than Mr B because Mr B was not on sick leave. I accept the Respondent’s submission that Mr B’s position was not privatised. Therefore I do not find that the Complainant was treated less favourably than Mr B. Further, I do not accept that, because the Complainant was on sick leave, it was a case of “out of sight out of mind”. It was the Complainant’s union representative who wrote to the Respondent on 7 October 2022 to state that they were not attending any of the consultation meeting dates proposed by the Respondent, adding “nor will we be engaging with you on this matter further”. When there was a change in this position sometime later, management resumed the consultation process with the Complainant and continued to do so throughout the following months. While for the most of it, the Complainant did not like the redeployment opportunities that were proposed, the process did eventually lead to the parties coming to an agreement on the Complainant’s redeployment when it was accepted by the Complainant that he needed to re-train (obtain a driver’s licence for the driver B position). It is unfortunate this process took as long as it did, but I do not find that this had anything to do with the Complainant’s disability. The driver B position was suggested by the Respondent in early 2023. It was not palatable to the Complainant at that time because it required him obtaining a licence, something he felt he should not have to do after 30 years’ service.

For the reasons set out above, I do not find that the Respondent refused or deliberately omitted to offer or afford to the Complainant access to opportunities for promotion in circumstances or in the same way in which another eligible and qualified person was offered or afforded such access.

The Respondent offered training for any of the redeployment opportunities requiring same (for example, violence and aggression training for the Traffic Warden position  and the necessary training to obtain a licence for the driver A and driver B positions). I find that the Respondent did not refuse to offer or afford the same opportunities to the Complainant with respect to training contrary to s 8(7) of the Acts.

No evidence was given in the hearing by the Complainant in relation to discrimination in relation to the ‘other’ ground provided for under s 8(1) of the Acts.

Claim in Relation to Failure to Provide Reasonable Accommodation

I do not accept that the Respondent failed to reasonably accommodate the Complainant within the meaning of that term in the Acts. The purpose of reasonable accommodation is to render a person fully capable to undertake the full range of duties associated with their role. The Complainant accepted in cross-examination that all he wanted as a comparable job given that it was the Respondent who had displaced him. I find that this was a reasonable request by the Complainant but it is not a request for ‘reasonable accommodation’ within the meaning of the Acts. I am satisfied that none of the occupational health reports requested reasonable accommodation in relation to the Complainant’s disability. I note that in the Occupational Health Assessment Report dated 27 July 2023 the doctor opines:

“Mr Bourke’s complaint of stress-related symptoms against a background of perceived work-related difficulties is in my view mainly an IR/HR issue. He was advised today that medical intervention would not lead to the resolution of any perceived work-related difficulties. I recommend that the employer engage with him in an attempt to explore any work-related issues. He is in my view currently fit to participate in any such procedures. I have not arranged to see him again but I would be happy to review him in the future if needed.”

Again on 4 January 2024 the Occupational Health Physician opines:

“In my view this is mainly an IR/HR issue, which will not be resolved by medical intervention. It is my impression that the kernel of this gentleman’s difficulties is related to issues at work and that an employment solution, rather than a medical solution, is needed. He is in my opinion fit to engage with his employer. I have not arranged to see him again but I would be happy to review him in the future if needed.”

I am satisfied that the Respondent was not asked by the Complainant, or his GP, or occupational health to consider making reasonable accommodation or adjustments because of the Complainant’s disability. The reports recommended engagement between the parties, and the Respondent did engage with the Complainant.

Further, I find that the Respondent’s refusal to pay the Complainant when he was certified sick was a decision in line with the Sick Pay Circular and was not a refusal to reasonably accommodate the Complainant. Nor was this refusal otherwise discriminatory on the disability ground.

Claim of Victimisation

I must now decide if the Complainant was penalised in circumstances amounting to victimisation. Victimisation is a stand-alone cause of action which requires specific proofs in that there must be evidence that the alleged adverse treatment occurred as a reaction to any of the situations listed at (a) to (g) of s 74(2).  As noted above, I must be satisfied that: (a) the Complainant took an action of a type referred to at s 74(2) of the Acts; and (b) the Complainant was subjected to adverse treatment by the Respondent, and (c) the adverse treatment was in reaction to the protected action having been taken by the Complainant.

It is necessary for the Complainant to demonstrate the connection between his actions in relation to defending entitlements under the Act and the treatment complained of. I am satisfied that the reference to ‘penalisation and victimisation’ in the union’s correspondence to the Respondent (dated 7 October 2022) had no connection with the Employment Equality Acts 1998-2015 (“the Acts”). The Complainant developed a disability in early November 2022, and thereafter presented several complaints of discrimination to the WRC. Therefore I am satisfied that the Complainant took an action of a type referred to at s 74(2) of the Acts.

I must now establish if the Complainant was subjected to adverse treatment because of him making complaints of discrimination under the Acts. Adverse treatment is not defined in the Acts, but it is accepted that it covers a wide range of adverse consequences.

The adverse treatment the Complainant contends he was subjected to included: (a) the Respondent continually offering him positions that were unsuitable to him which exacerbated his mental condition; and (b) the placing of conditions on his return to work. I accept the submission of the Complainant that the continued offering of certain roles (for example, Traffic Warden and Light Equipment Operator), when he had made it clear these roles were not an option and were having an adverse impact on his mental condition, come within the wide ambit of ‘adverse treatment’ under s 74(2). I do not find that the conditions attaching to certain posts (such as the requirement for a driving licence; a horticultural or climate qualification etc.) constituted adverse treatment. These conditions were genuine requirements for the posts in question. However, I am satisfied that requiring the Complainant to work in a position which constituted a demotion (while he was retraining) could be regarded as adverse treatment.

I must now establish if the Complainant was subjected to this adverse treatment because of his making of complaints of discrimination under the Acts. The “but for” test has been adopted by the Labour Court in the context of establishing victimisation under the Employment Equality Acts 1998-2015. The seminal case in this regard is Toni & Guy Blackrock Limited v Paul O’ Neill  HSD095 where the Labour Court held:

““In order to make out a complaint of victimisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by the Act. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

I am not satisfied that the adverse treatment the Complainant was subjected to was incurred by him because of, or in retaliation for, the Complainant having committed a protected act. I accept the evidence of Ms Phelan that the Respondent was engaged in a sincere effort to get the Complainant back to work.  It was the Complainant who rejected the various roles (which were in his view a demotion) because he did not feel that “after 30 years’ service . . . . [he] should have to worry about getting qualifications or passing driving tests or competing for open positions”. The Respondent submitted it had to get the Complainant back to work, and therefore the only ‘viable’ positions were those that did not require further qualifications or skills and that is why these positions were repeatedly offered to the Complainant. Any conditions attaching to the Complainant’s return to work were genuine requirements of the posts offered and/or were reasonable requirements in the circumstances, and were not imposed on the Complainant because of, or in retaliation for, the Complainant having committed a protected act.

In conclusion, I find that the Respondent did not discriminate against the Complainant on the ground of disability or penalise the Complainant in circumstances amounting to victimisation contrary to the Employment Equality Acts 1998-2015.

CA-00055950-001

I decide the complaint of discrimination on the ground of disability is not well-founded.

I decide the complaint of penalisation in circumstances amounting to victimisation is not well-founded.

CA-00058504-001

I decide the complaint of discrimination on the ground of disability is not well-founded.

I decide the complaint of penalisation in circumstances amounting to victimisation is not well-founded.

CA-00060124-002

I decide the complaint of discrimination on the ground of disability is not well-founded.

I decide the complaint of penalisation in circumstances amounting to victimisation is not well-founded.

Discrimination. Disability. Victimisation.