The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2011-059
(Represented by Deirdre Creighton, BL instructed by Kane Tuohy Solicitors)
HSE Western Area
(Represented by RDJ Glynn Solicitors)
File reference: EE/2006/166
Date of issue: 23 March 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Race and Disability - Access to Employment, Training, Conditions of Employment, Discriminatory Dismissal, Harassment, Failure to Provide Reasonable Accommodation, Victimisation and Victimisatory Dismissal.
1.1 This dispute concerns a claim by Dr Kishan Browne that he was discriminated against by HSE Western Area, on the grounds of race and disability contrary to sections 6(2)(g) and (h) of the Employment Equality Acts in relation to access to employment, training, conditions of employment, discriminatory dismissal in terms of section 8 of the Acts, harassment in terms of section 14A of the Acts, failure to provide reasonable accommodation in terms of section 16 of the Acts and victimisation and victimisatory dismissal in terms of section 74(2) of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 13 July 2006 under the Employment Equality Acts. On 12 May 2010, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 8 September 2010 and final information was received on 14 October 2010.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submits that he is an Indian national. From July 2001 he was employed by the respondent as a Non-Consultant Hospital Doctor (NCHD) in the Department of Psychiatry and was training under the Western Postgraduate Training Scheme. He was employed on a series of continuous fixed term contracts. On 29 November 2005 he was informed by the Training Committee that he would not be employed after 30 July 2006. He was informed that under the Scheme he needed to pass the membership exams of the Royal College of Psychiatrists (parts 1 and 2) within a 4 year period.
2.2 He submits that he was encouraged to re-apply for the scheme in March 2006 which he did. He was informed in July 2006 that his application for the Training Scheme was not successful because he must be an EU graduate, he should have passed part 1 of the exams and he should have less than 3 years experience in Psychiatry. He was also told that the Committee were implementing an EU Directive under which EU graduates would be given preference to non-EU graduates.
2.3 The complainant submits that his nationality had not been an issue previously. He requested a copy of the EU Directive but he was never given a copy. He requested reasons why he had not been re-admitted to the training programme but the responses varied and he considered them very offensive and delayed. On 25 May 2006 he received a letter which told him that the non-renewal was because of his failure to complete part 1 of MRC Psych exams. However, he was aware of Irish born doctors who were not subject to the four year rule. He submits that no one else was subject to a strict implementation of the 4 year rule and that Dr Mary Ryan, Dr Jane Devine, Dr Della Osthoff and Dr Frances Conway were all kept on pursuant to 4 year rule in non training scheme roles in one hospital. The complainant submits that on 1 July 2006 he was dismissed because of his race and ethnic origin.
2.4 The complainant submits that the rules and terms of his contract were changed midway through the contract and without any notification and he made a claim under the Protection of Employees (Fixed Term Work) Act, 2003. His withdrew that claim following agreement with the HSE that he would be put back on the payroll. This happened in December 2006 and the respondent agreed that he was entitled to a contract of indefinite duration. However, from December 2006 until July 2007 he was not permitted to work. On 1 August 2007 he was given a contract of indefinite duration in which he was designated a "Rotational Senior House Officer", subject to rotation on a 6 monthly basis between placements in hospitals in the training region. This rotation provision was not generally provided in training contracts or non-training contracts and was not strictly implemented and the terms of this contract remain in dispute.
2.5 The complainant submits that he was discriminated on his return to work because of the placements he was given and that his dismissal, despite his reinstatement, remains a permanent blemish on his record. He submits he was treated differently to Irish born/EU doctors who have remained on a series of fixed term contracts for many years.
2.6 The complainant submits that in January 2005 he reported sick for work and was warned by his consultant he was reporting to of dire consequences if he did not report to work. He sought advice from his union, the IMO. In May 2005 he had a back injury that was unrelated to work. Consequently on 7 November 2005 he reported sick to his consultant and he was threatened with consequences if he went on sick leave. He was threatened that he would be reported to the Medical Council's Fitness to Practice Committee. The consultant also stated he was a foreign medical graduate and was at mercy of Consultants for referrals to work. When he returned to work the consultant agreed there was genuine reason for his sick leave. He discussed the matter with another consultant who told him he could bring the matter to the Medical Council but warned him of the consequences. The complainant reported this to the IMO.
2.7 The complainant submits that he repeatedly had requests for annual and study leave refused at the last minute, having made his application in good time. Also, he had to arrange his own cover when he wanted time off. On 20 July 2005 he sought to avail of leave from 2-5 August 2005. On 26 July 2005 he was told "no" unless he secured cross cover or locum cover. He referred the matter to the IMO who sent a letter to HR stating that it was not up to the respondent to arrange cover. In August 2005 he sought study leave and again had difficulties and he had to refer the matter to the IMO. On 19 May 2006 he applied for leave for the period 26-30 June. He was informed on 29 May 2006 that his application was turned down because there was no cover available.
2.8 The complainant is unaware of any EU doctors who have had similar problems in relation to the taking of leave.
2.9 The complainant submits that in October 2007 he had a recurrence of back pain (after changing a tyre) and he was advised to rest until the symptoms subsided. He informed the respondent and was referred to an Occupational Health Physician. The complainant submits that his Contract of Indefinite Duration upon which he returned to work in August 2007 contained a clause which required his rotation on a six monthly basis. On 1 January 2008 the respondent decided to rotate him out of Galway to Ballinasloe and he was not given written notice. He was not in position to move out of Galway because the back pain was such that he could not move his belongings and on 3 December he asked for reconsideration. He was on certified sick leave from October 2007 to April 2008 as he was unable to travel to work. He was assessed by an Occupational Health Physician in January, February, March, May and November 2008. He was certified fit to return in April 2008 subject to restrictions regarding lifting, sitting and driving (30 minutes maximum). In July 2008 he was rotated to Roscommon which gave him a travel time of 1½ hours. In March 2008 he had been informed there were no jobs in Galway Mental Health Services. On 26 May 2008 he requested his College Tutor to reconsider his location on medical grounds and on 28 May he was told all posts in Ballinasloe were full and had been assigned. The recommendations of the Occupational Health Physician were ignored and no reasonable accommodation was provided. The complainant submits that he continues to require ongoing treatment at University College Hospital Galway (UCHG).
2.10 At the time the submission was made in November 2008 he was based in Roscommon and had made private arrangements to minimise the driving but driving is still contributing to the deterioration of his condition. He was due to move to Castlebar from 1 January 2009 with a journey time of approximately 2 hours. He continues to need treatment at UCHG which is unavailable at the other hospitals. He submits that the recommendations of the Occupational Health Physician have been ignored and the respondent has failed to provide him with reasonable accommodation.
2.11 The complainant submits that he was victimised as a consequence of taking cases to the Right's Commissioners and the Equality Tribunal. In July 2006 he was dismissed and there was a 24 day delay in getting his P45, which only happened following intervention from the IMO, the Ombudsman and media. He was disadvantaged because of delays in processing his claim for Unemployment Benefit until the P45 was issued. He was reinstated in August 2007 but there were long delays in the contractual situation being agreed and he was denied access to the Training Scheme and courses and denied the opportunity to sit exams. Also his Contract of Indefinite Duration contained terms that were different from previous contracts and different from other NCHDs. He was designated a "Rotational House Officer" and rotated every 6 months and no other NCHD was subject to the same rotation. He was denied access to the Post Graduate Training Scheme and refused the supervision necessary for him to sit exams. He worked for 18 months in posts which do not qualify for training purposes. His latest post was "supernumerary" and "non-scheme". Attempts with the IMO to discuss his situation have come to nothing.
2.12 On 6 Sept 2007 he absented himself from work for 10 days, on advice from the IMO, in protest at the changes to conditions of employment. The reasons given by the Clinical Director were that he had gone to the courts and rendered himself unemployable.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submits that the complainant is a Senior House Officer (SNO) who works under a Non Consultant Hospital Doctor contract. NCHDs provide services to hospital patients and the contract allows them to pursue higher training. From 1 August 2001 the respondent was employed as a non-training NCHD in Ballinasloe. In January 2002 he was appointed to a 4 year Western Basic Training Scheme. He was not given a formal contract but this was the same for everyone else on the Training Scheme.
3.2 Under the Western Basic Training Scheme participants were rotated on a six-monthly basis between a number of hospitals and associated community services; they received supervised clinical training; were placed in skills acquisition-approved posts; undertook academic courses to prepare them to take the College of Psychiatry MRCPsych Exams; and had weekly supervision sessions with a Supervising Consultant. The Scheme was administered by the Training Committee, which was chaired by a Scheme Coordinator and each hospital had a Psychiatric Tutor. The Training Committee meets twice a year to decide on rotations for 25-30 people.
3.3 The complainant had the following placements:
9 July - 31 December 2001 Ballinasloe non training
1 January - 30 June 2002 Roscommon - County Hospital
1 July - 31 December 2002 Ballinasloe - St Brigids Hosp
1 January - 30 June 2003 Ballinasloe - St Brigids Hosp
1 July - 31 December 2003 Ballinasloe - East Galway MHS
1 January - 30 June 2004 Roscommon - MHS
1 July - 31 December 2004 Roscommon - Child Psychiatry
1 January - 30 June 2005 Galway - UCHG
1 July - 31 December 2005 Galway - UCHG
1 January - 30 June 2006 Galway - UCHG intended final
3.4 All participants on the Scheme must complete two sets of exams to get membership of Royal College of Psychiatrists; the first set could be taken after 15 months and must be passed within 3 years. There was an opportunity to re-sit the exams every six months. Participants had four years to pass both sets of exams or they would be asked to leave.
3.5 The respondent submits that in March 2005 the complainant had a meeting with his tutor who told him he had to pass the first exam by the end of the year but he failed. In November 2005 the complainant attended a meeting with the Training Committee and he was told that he would be employed for a further 6 months placement but after that his contract would not be renewed. The respondent submits that this was consistent with the treatment given to all scheme participants.
3.6 The complainant did not contact the Training Committee again until he re-applied in March 2006 for the next Scheme. Criteria were set for the Training Scheme which excluded any doctor who had been in training post for 3 years without obtaining part 1 exams and therefore the complainant was not short listed.
3.7 The respondent submits that the complainant had no formal meeting with Dr Karena Meehan in March 2006 but a conversation in which she explained the difficulties of the Training Committee. Candidates were not required to be EU citizens, they were not required to have passed Part 1 to be shortlisted, nor required to have less than 3 years experience and the respondent was not aware of the EU Directive referred to by complainant.
3.8 The respondent confirmed that the complainant was paid from 1 July 2006 to 30 June 2007. On 26 July 2007 he was given a Contract of Indefinite Duration which was drafted in compliance with the Protection of Employees (Fixed Term Work) Act, 2003. The contract was never signed by the complainant. The contract was for a Rotational SHO in Psychiatry, with six monthly rotations reflecting his previous fixed term contracts. The post was not in the Training Scheme, as he had not passed the exams within the required period. However, he worked in one of the Western Training Scheme posts because of his right to continued employment on his previous conditions under the Contract of Indefinite Duration. This post had the same training opportunities as any other NCHD but not as a Training Scheme.
3.9 The respondent submits that in the contract of indefinite duration the complainant has retained the same terms and conditions of employment but this does not automatically entitle him to a place back on the Western Training Scheme from which he was excluded because of his failure to pass the exams which was a requirement of staying on the Training Scheme.
3.10 The respondent submits that in November 2005 the complainant rang a secretary to say he would not be coming to work. He had previously been late or unavailable on other occasions. The Consultant spoke to the complainant, who said he was tired. The Consultant asked the complainant to come to work to discuss the situation. He was not threatened with any consequences. Another consultant spoke informally with the complainant but he did not advise him to take the matter to the Medical Council. The respondent submits that it is common practice to arrange your own "call" cover. The respondent also submits that both sick leave incidents, which were on 7 November 2005 and 12 January 2005, are out of time in accordance with the Acts.
3.11 In response to the complainant's submission regarding annual leave and study leave the respondent submits that no one would be refused leave to sit an exam. The respondent’s policy is that study leave would only be given to 2 NCHDs at the same time. Requests for annual leave would be dealt with on a first-come first-served basis and this would be the same for everyone. These procedures are set out in the HSE Induction Booklet. Late applicants could be accommodated where they arrange their own cover, again this would be the same for everyone.
3.12 The events of 7 November 2005 in relation to sick leave are disputed but the respondent also submits they are out of time. The respondent submits that no accusation of excessive sick leave was ever made to the complainant.
3.13 The respondent submits that disability was not a factor in relation to the Training Scheme. Regarding the complainant's claims regarding their failure to provide reasonable accommodation the respondent submits that most posts will involve some significant travel. Whilst the placements are based in a hospital many require the trainees to go to service centres. The complainant was rotated as part of the scheme and this continued under his Contract of Indefinite Duration and there was no reason for him to stay longer than 6 months. The respondent submits that the complainant was historically reluctant to rotate. Also, he went on unofficial strike because of the terms of his Contract of Indefinite Duration.
3.14 In January 2008 the complainant sent an email regarding his back injury and he was referred to the Occupational Health Department who assessed him as not being fit for work. On 12 March 2008 he was assessed as being fit for work but not for driving aspects and also that he should avoid night work. The complainant asked if he could work in UCHG in order that he could get treatment for his back injury but he was told that his post was in Ballinasloe and there were no vacancies in UCHG. He was also told there was no position that did not require driving. The complainant was advised that his return to work in Galway could not be facilitated and he could not be accommodated by means of non rotation, because of the effects on others in the training scheme. He was also advised that consideration of reasonable accommodation was up to his local line manager, wherever he was placed. The non financial cost of allowing the complainant to stay put in one location beyond his six months rotation would be too significant because of its effect on the training programme and would be a disproportionate burden on the respondent.
3.15 In relation to the complainant's submission that the rotation moves were discriminatory because of his disability the respondent submits that the complainant could have got someone to help him move as he was paid relocation expenses and he could have travelled by train between Galway and Ballinasloe. However, he could not carry out his duties as a non driving post was not available. He was reassessed on 17 April 2008 and found suitable for most aspects of his job and that he could drive for approximately 30 minutes and this should improve with time. On 28 April 2008 he returned to Ballinasloe. The respondent submits that he was reasonably accommodated as soon as he could undertake his duties. During his next rotation in Roscommon it was possible to reallocate long distance duties to other NCHDs; something which had not been possible previously and would not be possible in other placements.
3.16 The respondent also notes that when the complainant was next rotated to UCHG on 1 July 2009 he requested to be seconded to a centre in Clarenbridge. At the time this submission was made the complainant had chosen to live over 30 minutes drive from his place of work.
3.17 The respondent denies that the complainant was victimised. The respondent submits that 24 days is not a significant delay in issuing P45. Also his entitlement to a Contract of Indefinite Duration was dealt with by the Right's Commissioners and he was reinstated and paid in full for the period of absence. The contract was issued in July 2007 but the complainant refused to sign it.
3.18 The respondent submits that the complainant was not refused access to the Training Scheme he applied for in March 2006. He failed to be short listed because he did not meet the eligibility criteria. He did not receive the recommendation from the Supervising Consultants to sit exams because he was not on the Training Scheme. The rotation clause was part of the Contract of Indefinite Duration and this was the same for all doctors. Previously his fixed-term contracts had been for six months in a specific location each time. The respondent submits that anyone on unofficial strike action would result in a threat of disciplinary action.
3.19 The respondent submits that the complainant's initial claim made in July 2007 had no mention of disability and it was first referred to in his submission made in November 2008. Therefore it should not be allowed as part of this claim. The respondent also submits that the complainant has given no comparators as required by the Acts and has failed to show a prima facie case in any part of his claim.
4. PRELIMINARY ISSUE
4.1 The complainant's initial claim form was received by the Equality Tribunal on 13 July 2006 and the ground of complaint was race. In his submission made in November 2008 he added incidents that had not been referred to in his initial claim in relation to the taking of sick leave, study/exam leave and annual leave and claimed that the respondent had failed to provide reasonable accommodation because of a disability. The respondent has submitted that I cannot consider these new claims because they were not included in the original claim and are therefore essentially a new claim which would be outside the time limits. The complainant submits that the EE1 was completed without the benefit of legal advice and the claim in relation to disability is made on the same facts, the events were bound together and because of the sequence of events reasonable accommodation could only have been made after the EE1 was submitted. The respondent disputed that the claims in relation to race and disability were made on the same facts.
4.2 In the recent decision of the High Court in County Louth Vocational Educational Committee v The Equality Tribunal, (Unreported, High Court, 24th July 2009, McGovern J). Judge McGovern stated:
"6.2 I accept the submission on behalf of the respondent that the form EE1was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as setout in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints which are made within that expanded period of time are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
6.3 Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice".
It is clear from this judgement that in advancing a claim under the Acts a complainant is not limited solely to what is contained in the originating form. I have to consider if the new incidents go beyond "the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time".
4.3 The initial claim made on the EE1 form in July 2006 arose from the complainant's dismissal from one Training Scheme and not being accepted on a later Training Scheme and this claim is made on the grounds of race. The additional claims made in the submission of November 2008 that were not mentioned on the EE1 relate to the taking of sick leave, study/exam leave and annual leave, and a claim in relation to the provision of reasonable accommodation. The complainant contends these incidents were bound together with those of the original claim. The complainant has provided no evidence to link the incidents in relation to the taking of sick, annual or study leave to his participation on the Training Scheme. I therefore find this part of the new claim to go beyond "the furnishing of further and better particulars" in relation to the complainant's initial claim. However, the EE1 form is not a statutory form and I accept these claims in relation to leave as new claims which are subject to the time limit provisions of section 77 (5) of the Acts from 19 November 2008. The incidents in relation to the taking of leave took place from January 2005 to May 2006. I therefore conclude that these events are out of time with regard to section 77(5)(a) of the Acts.
4.4 The claim in relation to the provision of reasonable accommodation relates to incidents which started in January 2008 and continued until 28 May 2008. The complainant contends they are linked to his treatment in relation to the Training Scheme. He was dismissed from the Scheme in July 2006 and whilst he remained in the respondent's employment because of their obligation to provide him with a Contract of Indefinite Duration I can find no link to his treatment in relation to the Training Scheme. I therefore find this part of the new claim to go beyond "the furnishing of further and better particulars" in relation to the complainant's initial claim. However, the EE1 form is not a statutory form and I accept this claim in relation to the provision of reasonable accommodation as a new claim which is subject to the time limit provisions of section 77 (5) of the Acts from 19 November 2008. The incidents are not one-offs but form a chain of events of which the most recent, 28 May 2008, was less than six months before the claim was made on 19 November 2008 and are therefore in time in accordance with section 77(5)(a) of the Acts.
4.5 Having accepted the claim in relation to the provision of reasonable accommodation I consider that the respondent had a good opportunity to deal with this new claim and addressed all issues in their submission of 25 February 2010 and also at the hearing, which covered all aspects of both claims made by the complainant. I am therefore satisfied that the respondent has not been prejudiced in dealing with the claim and that fair procedures have been followed.
5. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 I will deal with the two claims separately. Firstly I have to decide if the complainant suffered discriminatory treatment on the grounds of his race in terms of access to employment, training, conditions of employment and if he was dismissed in a discriminatory manner, if he was harassed and if he was victimised and dismissed in victimisatory manner on the grounds of his race. Secondly I have to decide if the respondent failed to provide reasonable accommodation on the grounds of the complainant's disability. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
5.2 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "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 means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides that 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 grounds specified in subsection (2).....".
ACCESS TO EMPLOYMENT
5.3 The claim in relation to access to employment relates to the complainant's application to join a new Training Scheme in March 2006. He contends that he was told that the criteria were that he must be an EU graduate, he should have passed part 1 of the exams, he should have less than 3 years experience in Psychiatry and he was told that an EU Directive was being implemented. The respondent contended that the eligibility criteria change from one Training Scheme to the next. In the Scheme advertised in March 2006 there were over 140 candidates and a small number of places available. Because of the number of applicants it was decided to exclude candidates who had been in a training post for three years or more without obtaining part 1 of the exams. At the hearing the respondent clarified that candidates were not required to be EU Graduates. At one time a higher weighting had been given to applicants from EU graduate universities but this was not the practice at this time. I accept the respondent's contention that the complainant was not short listed for the Training Scheme advertised in 2006 because he did not meet the criteria in relation to work experience.
5.4 The complainant's claim in relation to training is that when he was put on the Contract of Indefinite Duration he was not allowed to attend the training courses that were necessary for him to take the exams. The respondent contends that they were required to give the complainant the Contract of Indefinite Duration in accordance with the Protection of Employees (Fixed Term Work) Act, 2003. However, he was no longer on a Training Scheme and was therefore not entitled to attend the training courses that were part of the Training Scheme. I find that no discrimination occurred in relation to training.
CONDITIONS OF EMPLOYMENT
5.5 The complainant contends that he was discriminated against in relation to the taking of annual, study and sick leave. However these events are out of time, see paragraph 4.3.
5.6 Technically the complainant has continuous service with the respondent and it could be argued that in these circumstances he could not have been dismissed. However, he was re-instated into the respondent's employment when they accepted they had a responsibility under the Protection of Employees (Fixed Term Work) Act, 2003 and gave the complainant a contract of indefinite duration. If this had not occurred then, in all likelihood, his dismissal would have stood. Also on his re-instatement he was no longer on the Training Scheme.
5.7 The complainant contends that he was dismissed in a discriminatory manner when he was not allowed to continue on the Western Basic Training Scheme. He contended that he did not know that his employment would be ended after four years if he had not passed the exams. Also that the four year rule was not implemented strictly for Irish doctors and he was therefore discriminated against when he was forced to leave the Training Scheme. The respondent contends that the four year rule was imposed by the central examining body, the Royal college of Psychiatrists, and was implemented consistently. They stated that all participants are clearly told at the beginning of the Scheme that they must pass the first exam within three years or they will be asked to leave the Scheme. Accordingly, they spoke to the complainant in March 2005 when he still had two opportunities to take the exam.
5.8 The respondent submitted the cases of eight doctors who were on the Training Scheme and failed to pass the exams within the time limits. Two were asked to leave after four years, having failed to pass Part one. One of whom had passed Part one was had difficulty getting Part two and he re-applied for a Training Scheme elsewhere. Another one left voluntarily and became a non Training Scheme doctor through an open competition. Another doctor was spoken to as he was running out of time, as was the complainant, and he went on to pass the exams within the four years. Another doctor resigned after failing to pass part one. Two other doctors resigned after they did not pass an exam within the four years. Of these eight doctors five were not Irish.
5.9 I accept the respondent's contention that the complainant was dealt with fairly in not letting him continue on the Training Scheme because he had failed to pass the exams that were a requirement of the Scheme.
5.10 The complainant submits that he was victimised and suffered victimisatory dismissal as a consequence of taking cases to the Right's Commissioners and the Equality Tribunal. Section 74 (2) of the Acts states: ".....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 [under this Act] by a complainant, ......."
Section 6 (1) of the Acts states "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 grounds specified".
5.11 The complainant contended that he was victimised when the respondent delayed issuing his P45, whilst the respondent contended that 24 days was not a significant delay in issuing the P45. The complainant also contended that when he was reinstated in August 2007 there were long delays in the contractual situation being agreed and he was denied access to the Training Scheme and courses and denied the opportunity to sit exams. Further that his Contract of Indefinite Duration designated him a "Rotational House Officer" and he was rotated every 6 months and no other NCHD was subject to the same rotation. He was denied access to the Post Graduate Training Scheme and refused the supervision necessary for him to sit exams. He worked for 18 months in posts which do not qualify for training purposes.
5.12 The complainant provided no evidence that would link the delay in issuing his P45 to the claims he made to the Equal Tribunal or the Right's Commissioners. The respondent contend that they issued the complainant with a contract of indefinite duration which reflected the terms of his previous fixed-term contracts, in accordance with the Protection of Employees (Fixed Term Work) Act, 2003 but he did not accept the terms and refused to sign it. I accept that the respondent acted in good faith in issuing the contract and conclude that this did not amount to discrimination.
5.13 The complainant did not put forward any evidence in relation to victimisatory dismissal
5.14 The complainant put forward no evidence to support his claim of harassment.
FAILURE TO PROVIDE REASONABLE ACCOMMODATION
5.15 The complainant contends that after he had a recurrence of back pain in October 2007 the respondent failed to provide him with reasonable accommodation when they insisted that he be rotated every six months. He had wanted to stay in Galway to minimise his daily travel and to facilitate the treatment he was receiving. He was assessed by an Occupational Health Physician in January, February, March, May and November 2008. Following the assessment in March he was certified fit to return to work in April 2008 subject to restrictions regarding lifting, sitting and driving (30 minutes maximum).
5.16 From 1 January 2008 he had been rotated out of Galway to Ballinasloe but did not start work in Ballinasloe until April 2008 when he was considered fit to return to work. In July 2008 he was rotated to Roscommon which he said would give him a travel time of 1½ hours from Ballinasloe so he requested his College Tutor to reconsider his location on medical grounds but on 28 May he was told all posts in Ballinasloe were full and had been assigned. He contends the recommendations of the Occupational Health Physician were ignored and no reasonable accommodation was provided.
5.17 The respondent contends that preference over the rotational places had to be given to those who were on the Training Scheme and who needed to fulfill the requirements of their training. They submit that to give preference to the complainant would have put a disproportionate burden on the training programme. They contend that reasonable accommodation was up to the local line manager when he was deemed fit to return to work and in Roscommon they were able to re-allocate the long distance driving duties.
5.18 Section 16 (3) of the Acts states:
"(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.
Appropriate measures are defined in section 16 (4) of the Acts:
"(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."
5.19 The complainant was medically assessed regularly and the respondent made no effort to force the complainant back to work before he was deemed fit to return by the Occupational Health physician, albeit with some provisos. The medical report in March 2008 stated that the complainant was restricted in three areas; lifting, standing and driving. No evidence was given that there were any difficulties when he returned to work in relation to lifting and standing. The proviso that the complainant has claimed meant that the respondent failed to provide reasonable accommodation by insisting he be rotated was in relation to driving. Firstly, the complainant said he had to drive long distances to drive to and from work. Whilst the respondent stated the complainant was paid relocation expenses and therefore could have moved close to each location and that was the complainant's responsibility. Secondly, driving was driving as part of his work in going out to community services. The complainant did not give evidence that he had problems driving when he was at work and evidence was given that arrangements were made so that the complainant did not have to undertake long distance driving whilst working in Roscommon.
5.20 The complainant considered appropriate measures in relation to driving would be to let him remain in Galway for an indefinite period whilst he had symptoms from his back injury that made it difficult for him to drive to work. Also, that he was near UCHG where he was receiving treatment. However, when he did move in April 2008 he asked to stay in Ballinasloe, rather than move to Roscommon. The respondent considered their priority to be the operation of the Training Scheme and that the complainant needed to be moved every six months to keep places available for those on the Training Scheme. When he was considered fit to resum duties they contend that reasonable accommodation was for the consideration of local management.
5.21 The six monthly rotation was not the most convenient arrangement for the complainant. However, he was paid relocation expenses and could have moved to each of his work locations. No evidence was given that he was ever denied time off to attend medical appointments. Evidence was given that arrangements were made in Roscommon to re-allocate work that required regular driving.
5.22 I conclude that getting to and from work was the complainant's responsibility, in accordance with section 16 (4) (c) of the Acts. Furthermore, given the evidence in relation to the re-allocation of work in Roscommon I accept the respondent's contention that reasonable accommodation would be considered by the local manager for each placement and the complainant has not provided any evidence that this was not provided.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts:
- That the respondent did not discriminate against the complainant in relation to access to employment, training and conditions of employment,
- That the complainant was not was dismissed in a discriminatory manner,
- That the complainant was not harassed
- That the complainant was not victimised or dismissed in a victimisatory manner, and
- That the respondent did not fail to provide reasonable accommodation on the grounds of the complainant's disability.
23 March 2011