The Employment Equality Acts 1998 and 2004
Equality Officer Decision No:
A Prison Officer
(represented by Ms. Mairead Mc Kenna B.L., instructed by J.D. Scanlon & Company Solicitors)
The Minister for Justice, Equality and Law Reform
(represented by Mr. Anthony Kerr B.L., instructed by the Chief State Solicitor's Office)
The case concerns a claim by a Prison Officer in Dublin that the Minister for Justice, Equality and Law Reform directly discriminated against her on the disability ground in terms of section 6(2)(g) of the Employment Equality Acts 1998 and 2004 and in contravention of section 8 of the Act in relation to a temporary promotion and the extension of her probation.
2.1 The complainant submits that she was discriminated against on the disability ground in relation to promotion when she was not notified of an advertisement for the post of acting Clerk II for the General Office and Stores Area as she was on sick leave. She also claims that she was discriminated against in relation to her conditions of employment when her probationary period was extended whilst she was absent from work on sick leave. The respondent disputes that the complainant had a disability and submits that the complainant was not notified of the temporary position in line with normal practice for temporary positions. It submits that at the end of her probationary period, the complainant had a considerable sick leave record and it was not possible to appoint her to an established position. It denies the allegation of discrimination.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of the Equality Tribunal on 12 January 2005. On 3 April 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 16 May 2006 and from the respondent on 21 June 2006. A joint hearing of the claim was held on 7 March 2007. Final correspondence in relation to the matter was received from the respondent on 30 March 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant (Ms. A) submits that she suffers from depression and anxiety and contends that she has been treated less favourably by her employer on the grounds of disability within the meaning of section 6 (1) and 6(2)(g) of the Employment Equality Acts 1998 and 2004.
3.2 The complainant works at a prison. By letter dated 18 June 2003, she applied to the Governor of the prison for a position on the relief panel for the General Office. At that time, the complainant had been working in the General Office on a regular basis and in her own opinion had plenty of experience of the procedures of the office.
3.3 On 17 August 2004, the complainant was diagnosed as suffering from work related depression and a medical certificate was furnished to her employer. She also forwarded a letter from her General Practitioner dated 6 September 2004 to her employer wherein it stated that Ms. A was suffering from "anxiety and sleeping difficulties as a result of the abuse and bullying at work."
3.4 The complainant informed Governor M that she was being bullied and abused by a fellow Prison Officer, Ms. K. In or around the month of October 2004 whilst Ms. A was on sick leave, an advertisement was issued by Governor M inviting applications for the position of Acting Clerk 2 for the General Office and Stores Area. Ms. A was not notified of the advertisement by her employer and received no invitation to apply for the position despite the fact that she served on the relief panel for the General Office.
3.5 On 18 October 2004, Governor M sanctioned appointments to the General Office with immediate effect. Whilst the complainant was absent on sick leave, her probationary period was extended for a further six months causing the complainant further anxiety. In July 2005, Dr. Byers, Consultant Psychiatrist diagnosed the complainant as suffering from depression with marked anxiety and Dr. Byers believes that the development of the complainant's symptoms are a direct result of work related problems.
3.6 The complainant continues to be treated with medication for depression and anxiety as prescribed by her General Practitioner and contends that depression is a disability within the definition of section 2 of the Employment Equality Acts 1998 and 2004.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The complainant joined the prison service on 7 October 2002. Three months later in January 2003, a medical certificate was submitted to the prison service to the effect that the complainant was unfit for work "due to a work related illness". In March 2003, on completion of six months probation, the complainant was warned regarding her level of sick leave. She received similar warnings at the time of her twelve, eighteen and twenty two month probation reports. In August 2004, concern regarding her level of sick leave necessitated her being asked to forward a medical report to the office of the CMO. At the time, the then Governor of the prison indicated that he could not recommend confirmation of the Officer's appointment.
4.2 At the expiration of the normal two year probationary period, i.e. on 6 October 2004, the complainant had incurred in excess of seventy days sick leave and there could be no question of appointing anybody with such high sick leave to an established position. Accordingly, the Minister approved extending probation by a further six months. The continuing high level of sick leave - 158 days between October 2002 and February 2005 ultimately resulted in the Minister authorising a second six month extension to probation. Much of the aforementioned sick leave is categorised by the complainant's medical advisors as being due to "work related depression/stress". The alleged incidents giving rise to such depression/stress were the subject of a thorough investigation by the management of the prison. The investigation concluded that the complainant had not been subjected to bullying behaviour and this was communicated to the complainant on 2 August 2005 and although she had the right of appeal, she did not exercise that right.
4.3 Around October 2004, an advertisement was posted for officers to apply for a temporary Acting Clerk vacancy. In line with normal practice for a position that will only be temporary, the complainant was not notified of the vacancy due to her continuing and prolonged absence on sick leave. Temporary appointments were made on 18 October 2004 whilst the complainant did not return from sick leave until 29 December 2004. She was later facilitated with working in the General Office and was subsequently working on the Acting up Panel for Clerk 2 in the General Office.
4.4 At no stage in the complainant's employment has it been suggested that she suffers from a disability and at no stage was it an issue when providing for temporary positions for Acting Clerk 2. Accordingly, the respondent strenuously denies that the complainant suffered discrimination within the meaning of the Equality Acts.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant alleges that the respondent discriminated against her on the disability ground in relation to promotion to the post of Acting Clerk II and in relation to the extension of her probation. In this case, I will consider whether the respondent directly discriminated against the complainant on the disability ground in terms of section 6(2)(g) of the Employment Equality Acts 1998 and 2004 and in contravention of section 8 of the Acts in the manner in which it processed the appointments to Acting Clerk II and in extending her probation. I will consider (i) whether the complainant had a disability within the meaning of the Equality Acts and in the event that she had (ii) whether the respondent took appropriate measures to assist the complainant in the work place. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Claim of discrimination on the disability ground:
5.2 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides that:
.... 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') .......
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(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"),
5.3 "Disability" is defined in section 2 as meaning -
"(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".
Issue whether the complainant had a disability within the meaning of the Acts
5.4 The complainant joined the Prison service in October 2002 and the respondent submits that three months later, in January 2003 a medical certificate was submitted indicating that the complainant was unfit for work "due to a work- related illness". In the various medical certificates provided to me, the earliest one in respect of a period of sick leave in January 2003 states that the complainant is suffering from "acute anxiety reaction". Other certificates submitted to me state that the complainant is suffering from "work related depression", "work related stress","anxiety and depression". I find that the condition or illness which the complainant was suffering from in the course of her absences, depression, stress and anxiety fall within the definition of disability within the meaning of section 2(1)(e) of the Equality Acts.
Acting Clerk II post
5.5 The complainant claims that she was not notified of an advertisement issued by her employer in relation to the post of acting Clerk II for the General Office and Stores Area when she was absent on sick leave in October 2004. She claims that she received no invitation to apply for the position despite the fact that she served on the relief panel for the General Office. The closing date for receipt of applications was 15 October 2004. I note that on 18 October 2004, Assistant Governor M posted a notice that two people would be appointed to Acting Clerk II with immediate effect. The complainant was certified to be suffering from "work related depression" from 12 October 2004 to 18 October 2004. At that stage, she had been absent on continuous sick leave from 17 August 2004 and the respondent submitted that she did not return from sick leave until 29 December 2004. At the hearing, Governor M stated that it was custom and practice that employees absent on leave are not notified of temporary positions arising and the practice is that the Chief Officer would read out any vacancies on parade and notices would also be posted on notice boards around the prison. He submitted that there was no system of notifying people on any type of leave of temporary positions available pending the outcome of promotional competitions. The same system applied irrespective of the type of leave i.e., sick leave, parental leave.
5.6 The Labour Court stated in A Government Department v. A Worker (1)
The Court does not suggest, nor could it be seriously contended, that an employer must defer the filling of a job indefinitely in order to accommodate a candidate who is ill and unable to attend for interview. Candidates for employment or promotion are generally interviewed within a time frame in which the post must be filled. Candidates with a disability are entitled to no more than that.
In the circumstances of this case whereby the post was to be filled immediately and notification of the vacancy was not notified to any employee on leave, regardless of the type of leave, I find that the complainant was not treated less favourably on the disability ground in relation to notification regarding appointment to the post of Acting Clerk II in the General Office and Stores. However, I must point out that I have concerns about the fairness of this practice particularly when an employee is on leave prior to a competition but his or her return is imminent and they are therefore in a position to discharge the functions of the post.
Extension of the complainant's probation
5.7 The complainant also claims that whilst she was absent on sick leave, her probation was extended. By letter dated 4 October 2004, the complainant was informed that her probation was extended. I note that from 28 September 2004 to 4 October 2004 and from 5 October 2004 to 11 October 2004, the complainant was certified as suffering from work related depression. A number of cases have dealt with the obligations of an employer in circumstances whereby the employee has a disability. In A Health and Fitness Club -v- A Worker(2) , the Labour Court in a discriminatory dismissal case considered that the "nature and extent of the enquiries which an employer should make will depend on the circumstances of each case." It held:
"In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions."
5.8 More recently, the Labour Court has stated in relation to discrimination on the disability ground:
"The proscription of discrimination on grounds of disability is not absolute. If a person is, by reason of a disability, unable to fully undertake the duties of a position they may, in accordance with section 16(1) of the Act, be lawfully refused employment or promotion into that position (see A Worker v An Employer 16  ELR 159). The applicability of that qualification is itself restricted by the provision of Section 16(3) of the Act which, at the time material to the instant case provided: -
(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 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 reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
Subsection (3), paragraph (b), of Section 16 of the Act imposes a duty on employers to accommodate the needs of an employee with a disability. As was pointed out by the Court in an Employer v A Worker, the provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in or advance in employment. The effect of an employer's failure to fulfil the duty imposed by Section 16(3)(b) of the Act is to negate any defence which they might otherwise have under Section 16(1) in a claim of discrimination on the disability ground. (see also A Worker (Mr. O) v An Employer 16  ELR 113).
The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person's disability."(3)
5.9 The provisions of section 16(3) at the relevant time in this case arising from the amendments made by the Equality Act, 2004, inter alia, provide:
(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.
The Labour Court stated in A Government Department v. A Worker (4) in respect of section 16 of the Employment Equality Acts 1998 and 2004:
Since the occurrence giving rise to this claim s16 has been amended by the Equality Act 2004, which repealed subsection 3 in its entirety and replaced it with a new subsection modelled on Article 5 of Directive 2000/78 of 27th November 2000, establishing a general framework for equal treatment in employment and occupations. This Article imposes a positive duty on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment. A similar requirement is now incorporated in s16(3) of the Act as amended.
5.10 In accordance with the principles enunciated in A Health and Fitness Club -v- A Worker (5), subsequently upheld by the Circuit Court, the respondent when considering the issue of the complainant's sick leave should firstly have considered the factual position concerning the complainant's absences and capability including the degree of impairment arising from the disability and the likely duration. This would involve looking at the medical evidence available to the respondent either from the employee's doctors or obtained independently. At that stage, if it appeared that the complainant was not fully capable, the respondent should have proceeded to consider what if any, appropriate measures could be taken by which the employee could become fully capable.
5.11 In the complainant's first probation report at the 22 month stage of her probation and dated 17 August 2004, Governor M states "I am again reminding her of the need to maintain the improvement in her attendance record. I should also remind you that the Certified Sick Leave appears to be as a result of a bullying incident that was dealt with at local level. ......... She is now experiencing difficulties with another Officer and this is affecting her and her duty performance." Governor M proceeded to recommend that the complainant's probation be extended by six months to assess her suitability for the Prison service. At that stage, the complainant had five days uncertified sick leave and fifteen days certified sick leave. On 30 September 2004, the complainant was advised that an appointment was made for her with the CMO on 13 October 2004. The CMO's report of the consultation with the complainant is dated 20 October 2004. She referred to the complainant's stress and anxiety as a result of bullying at work and she considered that a transfer to another prison would be the best option for the complainant as it would give her an opportunity to put it all behind her and start afresh in the Prison Service. The complainant was advised by letter dated 4 October 2004 from Human Resources that the Minister had decided to extend her probation by six months to April 2005. That letter stated that whilst it was recognised that the majority of the complainant's sick leave was incurred as a result of depression/stress, the decision was taken to extend her probation. The letter makes no reference to bullying.
5.12 Again, on 28 February 2005, on the complainant's 28 month probation report, Acting Governor B recommended that the complainant's probation be extended by 6 months to assess suitability for the Prison service pending the outcome of an investigation. The second probation report dated 28 February 2005 states "I am again reminding her of the need to maintain the improvement in her attendance record. I should remind you that the latest certified sick leave is alleged to be because of "work related stress/depression". She is currently involved in an investigation being carried out." At that stage, the complainant had 6 days uncertified sick leave and 152 days certified sick leave. The complainant was subsequently advised by letter dated 5 April 2005 from Human Resources that since the commencement of her probationary period, she had incurred 9 absences totalling 158 days, 135 of which were for work related depression/stress.
5.13 On 29 April 2004, Officer K made a complaint of bullying and harassment by the complainant to the Governor and on 11 August 2004, she requested a formal investigation into her allegations. The complainant made a number of counter allegations. Chief Officer D carried out an investigation and Deputy Governor M issued a report into the allegations on 22 June 2005 having reviewed all of the documentation made available to him as a result of the investigation carried out by Chief Officer D and found that a number of alleged incidents took place. He found no corroborated evidence to indicate that the complainant had been bullied by Ms. K. I note that the complainant had been on sick leave before any allegation of bullying by Ms. K was made against her. On 15 August 2005, Acting Governor B recommended confirmation of the complainant's appointment noting that there had been no absences since the last report and on 7 October 2005, she was confirmed as an established Officer. The letter of 5 April 2005 from Human Resources extending the complainant's probation refers also to the on-going investigation into bullying and harassment and states that the Governor has not recommended confirmation of the complainant's appointment. Whilst the first paragraph of the letter refers to the complainant's sick leave, the second paragraph refers to the investigation into bullying and harassment. It is unclear the extent to which one or both factors were taken into account in extending the complainant's probationary period although the respondent's written submission refers only to an extension of probation having been made on both occasions due to the complainant's sick leave record.
5.14 It appears that the respondent had concern about the complainant's sick leave in August 2004 and asked her to forward a medical report to the CMO. The CMO then arranged to see the complainant and she issued a report to the respondent dated 20 October 2004 in which she recommended a transfer to another prison. Notwithstanding the complainant's appointment with the CMO and without waiting for her report, the respondent proceeded to extend the complainant's probationary period. Whilst the letters dated 4 October 2004 and 5 April 2005 to the complainant, acknowledge that the majority of her absences were due to depression/stress, the respondent failed to consider the issue of a disability and the provision of appropriate measures within the meaning of the Acts. This is also notwithstanding that the Human Resources letter dated 8 March 2005 to the Minister recommending extensions to 7 October 2005 specifically referred to the complainant's complaint to the Equality Tribunal.
5.15 In A Government Department v. An Employee (6), the Labour Court stated:
In this case the respondent, up to and including the hearing of this appeal, did not accept that alcoholism is a disability within the meaning of the Act. On that account the nature and scope of its statutory duty to avoid discriminating against the Complainant on the disability ground was never specifically considered by the Respondent.
Similarly, in this case, the respondent did not accept at the hearing that the complainant's illnesses fell within the definition of disability within the meaning of the Equality Acts. It also failed to consider its statutory duty to the complainant and I therefore, find that the respondent discriminated against the complainant on the disability ground.
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the disability ground in terms of section 6(2)(g) of the Employment Equality Acts 1998 and 2004 contrary to section 8 of the Act in relation to her appointment as an established Prison Officer.
6.2 I find that the respondent did not discriminate against the complainant on the disability ground in terms of section 6(2)(g) of the Employment Equality Acts 1998 and 2004 in relation to temporary promotion to the post of Acting Clerk II.
6.3 In accordance with section 82(1) of the Employment Equality Act 1998, I hereby order that the respondent:
(i) pay the complainant the sum of €8,000 compensation for the effects of the discrimination. (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income and is not therefore subject to tax);
(i) record the complainant as having completed her probationary period on 6 October 2004 and make all necessary adjustments including those required to seniority or salary.
18 May 2007
(1) ADE/05/4 Determination No. 0612 13 September 2006
(2) ED/02/59 Determination No: 037 18 February 2003
(3) A Government Department v An Employee ADE/05/16 Determination No: EDA061 30 January 2006
(4) ADE/05/4 Determination No. EDA0612 13 September 2006
(5) ED/02/59 Determination No: 037 18 February 2003
(6) ADE/05/19 Determination No: 062 14 February 2006