THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-037
A Respondent (A)
(Rep by Byrne Wallace Solicitors)
A Respondent (B)
(Rep by Matheson, Ormsby and Prentice Solicitors)
File Reference: EE/2006/453
Date of Issue: 7 March 2011
This dispute involves a claim by a complainant that he was discriminated against by A Respondent (A) and A Respondent (B) on the grounds of disability by association, and family status, in terms of section 6 (b) and 6 (2) (c) of the Employment Equality Acts, 1998 and 2008 and contrary to section 8 of those Acts, when it failed to recruit him to the position of production operator following his application in 2006 and that he was victimised as a result of making a complaint to the Equality Authority regarding the alleged discriminatory treatment in terms of Section 74 (2) of the Acts.
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 - 2004 to the Equality Tribunal on 16 November 2006 alleging that the respondents had discriminated against him on grounds of disability by association and family status in relation to his application for the post of production operator with the respondent. The complainant further contends that he was suitably qualified for the post and the respondent took his caring responsibilities for his spouse into account in deciding not to appoint him to the post of production operator. The respondents dispute this and maintain that the complainant was not recruited as he was not suitable for the post in question.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 22 September, 2010 to me, Valerie Murtagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts 1998-2008. This is the date I commenced my investigation. Written submissions were received from both parties. A hearing on the complaint was held on 18 January, 2011.
3. Summary of complainant's case
3.1 The complainant was employed as a production operator with Respondent B from July 1997 until his resignation in May 2003 when he became a full time carer for his wife who was a diabetic and became seriously ill. The complainant states that in January 2001, his wife became very ill and was hospitalised for a period of three months. The complainant states that while he had applied to be placed on unpaid personal leave of absence at this time, no response was forthcoming from Respondent B and the complainant states that he was left with no option but to visit his doctor who assessed him unfit for work due to stress and family trauma. As a consequence, his 23 day absence was categorised as sick leave rather than leave of absence under the company's work/life balance policy and he states this had the effect of increasing his total sick leave record by 50 per cent. As a result of this absence the complainant had a documented counselling session which is the first step in the Corrective Action Policy under the company's disciplinary procedures with his supervisor in April 2001. The complainant was absent again from 4 August until 27 August, 2001 because of an injury to his knee/leg. His supervisor triggered the CAP (corrective action plan) again and he was subjected to a verbal warning in August, 2001 due to his prolonged absenteeism. The complainant appealed this decision but the manager's decision was upheld. The complainant states that his supervisor in Respondent B on his corrective action notes dated 30 August, 2001 stated 'explained to Patrick that he should be on CA (corrective action) due to 26 per cent absenteeism unsustainable by Respondent B despite genuinity'. The complainant submits that this comment demonstrated that his former employer was very much aware that his absence was indeed genuine and necessary.
3.2 The complainant states that in a letter dated 21 February 2007 Respondent B's HR Director, Ms. D has stated that Respondent B 'were not aware whether his wife was still suffering from the illness for which the complainant took carer's leave and indeed whether this illness would be classified as a disability'. The complainant states that documents he received from Respondent B under the Data Protection Act indicate that Respondent B was aware of the fact that the complainant's wife's illness was classified as a disability. Internal e-mails from Respondent B's nurse indicate that the company doctor had advised the company that his wife was covered under current disability legislation. The complainant also states that in his manager's notes dated 18 September 2001, his manager comments 'no need to mention request for unpaid leave in documented counselling'. The complainant contends that there was every need to mention his request for unpaid leave during that period because it was the omission of any reference to that request which contributed to him being wrongfully placed on corrective action. The complainant states that by denying him access to the company's work/life balance policy, he was effectively forced to take the time off as sick leave and that same period of absence was later used as the reason for refusing to consider him suitable for re-hire. The complainant states that in March 2002, he requested a part-time work arrangement for 3 months under the company's work/life balance policy. This was not granted. A job sharing arrangement was offered but the complainant did not accept it as it involved the continued requirement for night shift work which he was unable to do as he had caring responsibilities for his wife. In May 2002, the complainant commenced carer's leave and was absent from work for twelve months on this basis and then resigned from his employment on 15 May 2003 in order to be a full time carer for his wife.
3.3 In late 2005, the complainant's wife's condition had stabilised to the degree that he decided he would try and re-enter the workforce. The complainant states that they moved closer to his wife's sister who lived nearby with the intention of his wife's sister being able to assist his wife whilst he would return to workforce. In December, 2005 the complainant saw an advertisement in relation to Respondent B looking for production operator staff. He forwarded his c.v. to Respondent B and followed up by making telephone queries in December 2005 regarding his application. A staffing specialist with Respondent B informed him that Respondent A was the company recruiting staff on their behalf and persons would be employed by Respondent A and she would forward his c.v. to them. In May 2006, the complainant contacted Ms. B, HR manager with Respondent B who confirmed that Respondent A had a policy of not hiring ex employees of Respondent B in relation to positions which involved the provision of services to Respondent B. However, Ms. B also confirmed that it was her understanding that this policy was under review. In a follow up telephone call, Ms. B confirmed to the complainant that Respondent A had updated its policy and would be reviewing the applications of ex employees of Respondent B who (i) were out of Respondent B's service for a minimum of 1 year and (ii) were deemed a suitable re-hire by Respondent B. The complainant made telephone enquiries with a representative in Respondent A and they replied to him on 17 May, 2006 in writing stating that he was unsuccessful for the position. The complainant subsequently found out that Respondent B had given an unfavourable reference to Respondent A with regard to his former employment with them stating his performance was unsatisfactory and the complainant was not a suitable re-hire.
3.4 The complainant is also claiming victimisation by Respondent B because of his previous challenge to the CAP (corrective action plan) and the fact that he made a complaint to the Equality Authority whom he wrote to on 27 May, 2006 seeking assistance with his complaint. As a consequence, he states Respondent B attempted to penalise him in the form of a character assassination in a letter dated 21 February 2007 where Respondent B's HR Director states that the complainant was placed on corrective action because he had deviated from procedures around absence in the areas of certification, notification and social welfare cheques. The complainant refutes this assertion and states that his corrective action and subsequent appeal documentation clearly makes no mention of any attempt at welfare fraud and the complainant states that he was able to produce a bank statement which indicated that all monies owed to Respondent B had been paid to them by a personal cheque on 21 April 2006. The complainant refers to the European Court of Justice Judgement (case C-303/06) Coleman v Attridge Law and the European Equal Treatment Directive 2000/78/EC in support of his complaint.
4. Summary of respondent's case
4.1 Respondent A state that pursuant to a contract for services, they carry out certain recruitment functions for Respondent B. In the event that Respondent B receives direct applications for positions in its company, such applications are passed to Respondent A to process. In 2006, the contract's manager with Respondent A, Mr. M received a copy of the complainant's c.v., he reviewed the c.v. and noted that the complainant had previously been employed with Respondent B. As is normal practice, Mr. M contacted Respondent B to seek a reference with regard to the complainant's previous period of employment with Respondent B. A representative of HR in Respondent B advised Mr. M that the complainant was not a suitable hire. Respondent A state that in circumstances where it receives a negative reference from Respondent B, it would not proceed with that person's application. Mr. M states that he was not aware of the complainant's wife's disability and that the only information provided to him was that the complainant was not a 'suitable hire'. Respondent A denies any discrimination against the complainant on the grounds of disability by association or family status.
4.2 Respondent B state as a preliminary issue that the Tribunal does not have jurisdiction to hear this claim, in so far as it should be against Respondent A as the complainant's employer/potential employer and not Respondent B. They state that the complainant would not have been employed by Respondent B under the arrangement now being challenged by him and he has no cause of action under the Employment Equality Acts against Respondent B. Respondent B request that the complainant's claim against it should be dismissed in accordance with section 77A of the Employment Equality Acts as being misconceived pursuant to those provisions. Respondent B state that the complainant was employed with them as a production operator from July 1997 until his voluntary resignation in May 2003. In 2006, the complainant applied for a position in Respondent A to work on its behalf in the provision of services at Respondent B's premises. The complainant's application was unsuccessful. In this regard, Respondent A sought and received a verbal reference from Respondent B which outlined that he was not considered suitable to provide services to Respondent B as they considered the complainant's performance while in its employment to have been unsatisfactory.
4.3 By way of example of the difficulties which Respondent B had with the complainant's performance while in its employment, it submits that, for the year ending December 2000, the complainant's level of absence amounted to 4.52% over the previous 12 month period. In January 2001, the complainant advised his manager that his wife was in hospital and during January/February in order to facilitate the complainant and minimise any impact on his pay, his manager arranged for him to take time off as annual leave and also granted him paid compassionate leave and some unpaid leave. Respondent B state that the complainant verbally requested personal leave of absence on 16 February, 2001 and before they were in a position to accede to his request, on 22 February 2001, the complainant submitted a medical certificate to cover his absence from 22 February 2001 until 15 March 2001. This cert confirmed that the complainant had a 'genuine family crisis' and he was paid in respect of this absence. Respondent B state that notwithstanding the sympathetic treatment afforded to him during this time, the complainant failed to make any contact with Respondent B except on one occasion when he advised that he would return to work on 16 March, 2001. This was in breach of Respondent B's absence policy which requires contact by an employee on a weekly basis. Respondent B state that the complainant failed to submit social welfare cheques received by him although he was being paid fully by Respondent B at this time which is another breach of the company's policy. Consequently, the complainant was the subject of documented counselling by his supervisor pursuant to the company's correction action procedure which is the first step in the company's CAP (corrective action procedure) under their disciplinary procedures. Counselling is a precursor to the formal corrective action procedure. An employee who fails to meet the performance expectations outlined in their performance improvement plan can be escalated to the formal corrective action procedure.
4.4 Respondent B state that at no time was the company made aware of the complainant's wife's illness or her prognosis. Respondent B state that for the year August 2000 until August 2001, the complainant's level of absence significantly increased to 22.15 per cent and they state notwithstanding the documented counselling session which the complainant had with his supervisor in April 2001 (which they state was in respect of his absence and his failure to adhere to the company's notification and social welfare procedures), the complainant's absence levels failed to improve and he was absent from 4 August to 27 August 2001 due to an injury to his knee/leg. Respondent B state that it was due to the latter absence that the company's CAP (corrective action plan) under the disciplinary procedure was again triggered and the complainant was subject to a verbal warning due to his prolonged absenteeism. The complainant appealed this disciplinary sanction but under the appeal, the decision was upheld.
4.5 Respondent B state that for the years 1998, 1999, 2000, 2001 the complainant received a ranking of '3' in his performance reviews, a ranking of '3' meant that the complainant met expectations in his performance. In January, 2002 the complainant's annual performance evaluation was ranked as '1' meaning that action was required because he was not meeting expectations. This was the last performance review with Respondent B as the complainant resigned in May 2003. On 15 March 2002, the complainant requested part-time work but due to business reasons this was not possible having regard to his position as a production operator. Respondent B states that all employees in production must be able to work full-time shifts in order to support the business. In an effort to accommodate the complainant's circumstances, he was offered the option to job share but refused this on the grounds that it involved working more hours per week than he wanted to even though it involved a reduction in the amount of hours previously worked by him. On 6 May 2002, the complainant's application for three months carer's leave of absence was approved. He requested three extensions on this leave of absence all of which requests were granted. The complainant's carer's leave of absence was due to expire on 25 May 2003, however on 14 May, the complainant resigned. Respondent B state that in his letter of resignation, the complainant specifically states that he was extremely grateful to his manager and all at the respondent company 'for the understanding and patience that has been shown and demonstrated to me over the last twelve months'. Respondent B also state that in the complainant's exit interview form, the complainant stated 'more flexible and understanding than expected or deserved'.
4.6 Respondent B denies any allegation of victimisation in relation to its decision not to recommend the complainant to be hired by Respondent A to provide services to its company. Respondent B state that they had an objective and genuine reason for recommending that the complainant not be hired by Respondent A to work at their premises and it has in no way treated him any less favourably since making that decision. Respondent B is satisfied that both the reason and the process were unrelated to either the complainant's family status or his wife's disability. Respondent B state that the verbal reference given to Respondent A regarding the complainant not being a suitable re-hire was based on his high level of absenteeism in the year before he left the company. Respondent B state that it had no knowledge to the extent of his wife's illness in the past or at the time the recommendation was made to Respondent A. Respondent B also contend that there cannot be any question of victimisation of the complainant in the circumstances following on from his decision to pursue a claim where the event complained of preceded same, some five years earlier. Respondent B also states that the complainant was offered the opportunity to interview for alternative vacancies within Respondent A.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me is whether Respondent A and Respondent B discriminated against the complainant on grounds of disability by association and family status in terms of section 6 of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, when it failed to recruit him to the position of production operator following his application in 2006 and whether he was victimised by Respondent B in terms of Section 74 (2) of the Acts. In reaching my decision, I have taken into consideration all of the submissions, oral and written, made to me by the parties.
5.2 Section 85A of the Employment Equality Acts, 1998 and 2004 provides as follows:
" (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."
This requires the complainant to establish, in the first instance, facts from which it can be inferred that he was treated less favourably on the grounds of disability by association and family status. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.3 When the burden of proof shifts to a respondent, there are a number of factors which should be taken into account in deciding if that burden has been discharged. Firstly, since the facts necessary to prove an explanation can only be in the possession of the respondent, the Tribunal should expect cogent evidence to discharge the burden of proof (Barton v Investec Henderson Crosthwaite Securities, 2003 IRLR 332 and the decision of the Court of Appeal for England and Wales in Wong v Igen Ltd and others 2005 IRLR 258). The Tribunal must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution (Nevins, Murphy, Flood v Portroe Stevedores 2005 16 ELR 282). In Wong v Igen Ltd and others, Peter Gibson LJ considered the scope which should be ascribed to the notion of 'no discrimination whatsoever'. He held that if the protected factor or characteristic is more than a 'trivial influence' in the impugned decision, a claim of discrimination will have been made out.
5.4 Respondent B contends that the Tribunal does not have jurisdiction to investigate and hear this claim against them, in so far as it should be against Respondent A as the complainant's employer/potential employer and not Respondent B. In this regard, Respondent B state that the complainant would not have been employed by Respondent B under the arrangement now being challenged by him and consequently he has no cause of action under the Employment Equality Acts against Respondent B. In considering this issue, I have taken note of Section 2 (5) of the Employment Equality Acts which states that "a person who, under a contract with an employment agency, within the meaning of the Employment Equality Act, 1971, obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to the agency workers, as the 'provider of agency work'." Having regard to the evidence adduced, I find that Respondent B was the "provider of agency work" within the meaning of Section 2 (5) in the circumstances of the present case. Accordingly, I am satisfied that the Tribunal does have jurisdiction to hear the claim against Respondent B.
5.5 Having questioned a number of witnesses from both Respondent A and Respondent B, it was established that Respondent B gave an unfavourable verbal reference to Respondent A in relation to the complainant's former employment with Respondent B. Mr. M, contract manager with Respondent A states that, at that time in 2006, there was a huge volume of staff to be recruited within the IT sector and with Respondent B. He states that he had no knowledge regarding the complainant's caring responsibilities or his wife's illness and his only role in the matter was contacting Respondent B, as was standard practice, where the applicant was an ex employee, to seek a reference. On this occasion, Mr. M was informed by a HR representative in Respondent B that the complainant was not a suitable re-hire. Mr. M stated that he did not make any further enquiries and as in this case where there was a negative reference from a company, the person was advised that his/her application was unsuccessful. I found Mr. M to be consistent in his evidence and to be a credible witness. I am satisfied based on the evidence in the submissions and the oral evidence given by representatives of Respondent A on the day of the hearing that their only role in relation to the complainant's application was to seek a reference from Respondent B where the person applying for the position was an ex employee as in the present case. In this regard, an unfavourable reference was given by Respondent B to Respondent A regarding the complainant and in line with their procedures, the complainant was issued with a letter stating he was unsuccessful for the post in question. I am satisfied that the complainant has not provided evidence of a prima facie case on grounds of family status or disability by association against Respondent A in relation to the recruitment process for the position of production operator with Respondent A.
5.6 I questioned Mr. C, supervisor of the complainant when he was employed in Respondent B as he was the person responsible for the unfavourable reference given by Respondent B to Respondent A. Mr. C states that "from time to time he would receive a call seeking a reference relating to an ex employees and being a supervisor, he would be required to make a definite call of a yes or a no". Mr. C states that during the complainant's last year of employment prior to the year's leave of absence, he was subject to the CAP (corrective action procedure) process due to his high level of absenteeism. He states that it was not solely based on the high level of absenteeism which the complainant had accrued that he gave him an unfavourable reference. He states that "there were interpersonal issues with the complainant during his employment, for example, communication issues and issues concerning teamwork along the way". He further states that "with the rapid growth and changes that were underway in Respondent B at that time, he did not have the time to be sitting down with the complainant coaching him out of these issues as they were extremely busy during this time".
5.7 In relation to Respondent B instigating the first step of the CAP which is documented counselling following the complainant's absenteeism in early 2001; while I am very sympathetic to the circumstances of the complainant, it was established that the complainant verbally requested personal leave of absence on 16 February, 2001 and before they were in a position to fully consider his request, on 22 February 2001, the complainant submitted a medical certificate to cover his absence from 22 February 2001 until 15 March 2001. I consider that giving the company 6 days to examine and process an application for unpaid personal leave of absence is somewhat unreasonable. Respondent B has stated that the reason the CAP was instigated was because the complainant had deviated from procedures around absence in the areas of certification, notification and social welfare cheques. They have produced an e-mail dated 6 April 2001 issued to the complainant, a copy of which was submitted to the Tribunal which refers to the complainant's absence from 28 January - 15 March 2001 and the deviations from procedures in the areas of certification, notification and social welfare cheques. The complainant refutes this assertion and states that he never received a copy of the e-mail dated 6 April 2001 and he was of the view that this CAP procedure was wrongfully put in place because he had no option but to get a sick note from his doctor following the company's failure to revert to him regarding his request for personal leave of absence under the company's work/life balance policy. While there are two very diverse conflicting versions in regard to this matter, I am of the opinion that it was not made fully clear to the complainant in the documented counselling and correspondence thereafter that the corrective action procedure was triggered as a result of his failure to adhere to Respondent B's notification and social welfare procedures and the complainant felt it was as a result of the absence per se.
5.8 The CAP procedure was triggered again in August 2001 following the complainant's absence from 4 August to 27 August 2001 due to an injury to his knee/leg. The complainant was given a verbal warning due to his prolonged absenteeism. He appealed this decision on the basis that the earlier absence from January to March was due to his wife's hospitalisation for three months and the fact he was not given personal leave of absence. He states that he had no option but to get a doctor's certificate for the leave in question. The decision on appeal was upheld. The complainant also states that in his manager's notes dated 18 September 2001, the manager comments "no need to mention request for unpaid leave in documented counselling". Respondent B argues that the manager made this comment as he was trying to assist the complainant by giving him annual leave and compassionate leave so as to minimise the impact on his pay.
5.9 The complainant was approved for leave of absence under the work/life balance scheme in early 2002 and took a year in this regard which was due to expire on 25 May 2003. However, he resigned his post on 14 May in order to be a full time carer for his wife. I note that in his resignation letter to Respondent B, the complainant states that he was 'extremely grateful to all at Hewlett Packard for the understanding and patience that has been demonstrated to me over the last twelve months'. In addition, a copy of the complainant's exit interview was submitted to the Tribunal where he states that the company had been 'more flexible and understanding than expected or deserved'. The complainant contends that it was only later that he realised that if the employer had not been legally required by legislation to afford him such leave, that no alternative would have been available to him in keeping with their previous failures to allow him access to their work/life balance policy. I do not fully accept this statement and I am of the opinion that an employer has to balance its business interests in conjunction with affording employees where possible access to favourable conditions under its work/life balance policy.
5.10 The complainant has also made a claim alleging victimisation against Respondent B, in that, he was given an unfavourable reference in connection with his application in 2006, because of his previous challenge to the CAP (corrective action plan) and the fact that he made a complaint to the Equality Authority whom he wrote to on 27 May, 2006 seeking assistance with his complaint. As a consequence, he states Respondent B attempted to penalise him in the form of a character assassination in a letter dated 21 February 2007 where Respondent B's HR Director states that the complainant was placed on corrective action because he had deviated from procedures around absence in the areas of certification, notification and social welfare cheques. Respondent B also contend that there cannot be any question of victimisation of the complainant in the circumstances following on from his decision to pursue a claim where the event complained of preceded same, some five years earlier. Respondent B also states that there is no question of victimisation given that the complainant was offered the opportunity to interview for alternative vacancies within Respondent A. I do not accept the claim of victimisation. Having interviewed a number of witnesses, I am of the view that Respondent B gave a reference to Respondent A on the basis of an objective reason based on his manager's assessment of him during his employment in Respondent B which as he stated was not solely due to his high absenteeism rate in the year prior to his leave of absence but also due to issues around communication and teamwork during his previous employment with them.
5.11 I questioned witnesses if they were aware of the complainant's wife illness at the time of the complainant's re-application; Mr. M of Respondent A stated he had no knowledge of same. Mr. C, the complainant's supervisor while in employment with Respondent B was aware 6 years previously that complainant had been absent and that his wife had been ill at that time but when he gave the reference in May 2006, he states that he had no knowledge of her health and his reference was based solely on the complainant's performance while employed at Respondent B and not connected in any way to his wife's illness. I found Mr. C to be a credible witness and found his testimony to be frank and honest. I feel that that the complainant was treated unfairly, in that, it would appear that the issues regarding communication and teamwork concerns which his manager outlined at the hearing were not made clear to the complainant during his employment with Respondent B. The complainant was under the impression that the unfavourable reference related solely to his high level of absenteeism, some of which he states was related to him having to get a sick note from his doctor as the company did not approve his request for personal leave of absence. However, while I feel this treatment of him was unfair, I can find no evidence to link this treatment to his family status or his wife's disability. I accept the oral evidence given by Mr. C on the day of the hearing and I am satisfied that the complainant has not shown evidence of a prima facie case of discrimination on the grounds of family status or disability by association against Respondent B in relation to the recruitment process for the position of production operator with Respondent A.
5.12 Having taking all of the evidence into consideration including written submissions and oral testimony on behalf of witnesses, I am of the view that the complainant was not discriminated against on the grounds of disability by association and family status and there was an objective reason not related to his caring responsibilities and his wife's illness which resulted in the unfavourable reference given by Respondent B to Respondent A in relation to his former employment. I am also satisfied based on the evidence in the case that the complainant was not victimised as a result of making a complaint about the alleged discriminatory treatment.
6. Decision of the Equality Officer
6.1 I have completed my investigation of this complaint and make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that-
(i) the complainant has not established a prima facie case of discrimination against Respondent A or Respondent B on grounds of disability by association or family status in terms of section 6(2) of the Employment Equality Acts, 1998 and 2008 and contrary to section 8 of those Acts, in relation to the recruitment process for the position of production operator with Respondent A.
(ii) the complainant was not victimised by Respondent B in terms of Section 74 (2) of the Employment Equality Acts.
Accordingly, I find in favour of the respondents in this matter.
7 March, 2011