EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-125
A Prison Officer
(Represented by Emily Gibson B.L. instructed by
Gallagher Shatter Solicitors)
The Irish Prison Service
(Represented by Cathy Maguire B.L. instructed by
the Chief State Solicitor)
File reference: EE/2009/633 & EE/2009/706
Date of issue: 24 September 2012
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Disability - Promotion - Harassment - Failure to Provide Reasonable Accommodation
1.1 This dispute concerns claims by A Prison Officer that he was discriminated against in relation to promotion in terms of section 8 of the Employment Equality Acts, that he was harassed in accordance with section 14A of the Acts by the Irish Prison Service who also failed to provide him with reasonable accommodation in accordance with section 16 of the Acts, on the grounds of disability contrary to section 6(2) of the Acts.
1.2 The complainant referred claims to the Director of the Equality Tribunal on 26 August 2009 and 22 September 2009 under the Employment Equality Acts. On 10 February 2012, in accordance with his 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(1) of the Acts and as part of my investigation I proceeded to a hearing on 3 April 2012 and a second hearing day took place on 27 June 2012.
2. PRELIMINARY ISSUE
The complainant made a second written submission which was received on 16 March 2012 and a copy was forwarded to the respondent on 22 March 2012. The respondent requested an adjournment as they did not have sufficient time to consider this submission before the hearing scheduled for 3 April 2012. I rejected this request but it was repeated at the start of the first day of hearing. I again rejected the request for adjournment as I considered that they had sufficient time to consider the submission, which, in my opinion, contained very little new information or legal argument. Furthermore, the respondent had chosen not to address a number of incidents of alleged discrimination in their initial written response because the complainant had not named a direct comparator. Section 6 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." Clearly it is not necessary for the complainant to cite a direct comparator. By not considering the incidents where the complainant did not cite a direct comparator initially the respondent had put themselves at a disadvantage when the complainant gave the names of comparators shortly before the hearing and they then looked into the incidents.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant started work for the respondent on 14 November 1987. In 2002 he was promoted to Assistant Chief Officer.
3.2 In 1996 the complainant was involved in an incident where a prisoner took a drug overdose and he resuscitated the prisoner. As a result of this incident he submits that he suffered from depression and had anxiety attacks, which amounted to posttraumatic stress. He was put on medication and diagnosed with depression. The complainant submits that on Christmas Eve night 2007 when he was in charge of the Prison as the Assistant Chief Officer on duty a prisoner died of a drug overdose. The incident triggered a relapse of the symptoms he suffered in 1996 and he went on certified sick leave. Subsequently the incident was regarded as injury on duty by the Chief Medical Officer. The complainant contends that the protocol for serious incidents was not followed, in that three days special leave was refused and no special staff service officer was made available. The protocol had been followed in other incidents.
3.3 The complainant submits that on 7 July 2008 he was called to Governor A's office regarding sick leave. When he told him his situation and his heath issues he was told to 'get over it' and that he was 'dragging out his complaint'. The complainant became very agitated by this response and was unable to return to work.
3.4 The complainant says that on 17 October 2008 he had a confrontation with Governor A regarding a report he had written when he had been threatened with being taken hostage during an incident with a number of prisoners. He submits he was berated and humiliated in front of staff and told he was not fit to wear the uniform. This was because he could not identify the prisoner who had issued threats with 100% certainty as he had been surrounded by a number of prisoners when the threat was made.
3.5 The complainant submits that on 25 January 2009 Governor B questioned him in front of staff regarding the role of special reserves in the area he was working and he was later told him was being watched on CCTV. There were similar incidents on 7 February, 15 September and 18 September 2009.
3.6 The complainant submits that on 30 January 2009 he met Governor C regarding the difficulties he was having with the job. The Welfare Officer had phoned Governor C beforehand to tell him of the difficulties he was having. The complainant submits he asked about moving to floating ACO duties. Governor C said he would speak to the Welfare Officer but he did not and the complainant heard no more. The complainant states he did not want light duties just more variety in his duties.
3.7 The complainant submits that on 11 February 2009 he handed in a letter to Chief Officer D addressed to Governor C making a written request to move from the area he was working in to a floating ACO role because of the unfavourable treatment he was receiving from senior prison management. His request was not answered. The complainant cited another ACO who was allowed to move from his area to floating duties following a disagreement with prison management over procedures in the area he was working.
3.8 The complainant submits that on 7 March 2009 he suffered a debilitating episode and was unable to perform his night duties. Consequently the disciplinary code was started for neglecting his duty. The incident resulted in him taking 50 days certified sick leave. Because of his concerns about returning to work he rang Chief Officer E asking to be excused nights on a temporary basis. He felt this would allow him to get back to work. He was told this was not possible. He spoke to Governor F and was again told it was not possible. This request was also refused by Governor C. He faxed in a letter from his doctor supporting his request but he got no reply. He was unable to return to work that week and as he had been placed on non-payment for sick leave he took a week's holiday. He subsequently found out that another officer had been excused nights temporarily due to a medical condition.
3.9 The complainant submits that in December 2008 the respondent decided to place him on non-payment for sick leave. His appeal of this decision was unsuccessful and from April 2009 was put into effect.
3.10 The complainant submits that in March 2009 a female prison officer was transferred to a desk position due to a medical condition. He also submits that another ACO was allowed to take up a vacant training liaison post temporarily when he returned to work after an operation.
3.11 The complainant submits that on 5 February 2010 when he was in charge of the visiting area Governor F and Chief Officer D asked him for the random search recording journal. The complainant submits that no such journal existed and there was nowhere to carry out the searches. He submits it was a personal attack from Governor F. The nature of the attack on him caused him great anxiety and he had to go home at lunchtime and he returned to work three days later. He found the return to work difficult but felt he had no option as he was on non-payment for sick leave.
3.12 The complainant submits that the incidents on 7 July 2008, 17 October 2008, 25 January 2009 and 5 February 2010 amount to harassment within the meaning of the Acts.
3.13 The complainant submits that the respondent failed to provide him with reasonable accommodation, in that they failed to make enquiries and he was not medically examined until 15 July 2008.
3.14 The complainant submits that he feels targeted by management in the Irish Prison Service because of his disability arising from these incidents. His probation for promotion was held back several times because of his condition and the sick leave that he had to take because of it.
4. RESPONDENT'S WRITTEN SUBMISSION
4.1 The respondent states that the complainant put down 21 April 2009 as the date of most recent discriminatory act but they are unclear what happened then. They contend that many of the incidents are outside of the time limits in the Acts. They also contend that all issues should have been raised in the complainant's first submission and rely on Henderson v Henderson. Furthermore, they contend that Section 25 of the Acts came into effect from 19 July 2004 and I cannot look before this when disability in the prison service was excluded in the Employment Act, 1998.
4.2 The respondent accepts that the complainant is suffering from a disability. The complainant starting working for the respondent in 1987 and has taken a total of 529 days of sick leave, which equates to around 23 days per year. The sick leave since 1990 was for a variety of reasons, whilst this claim is dealing with the complainant's disability; depression. In 1992 he was on sick leave with depression for 3 days and he made no further complaint of depression and/or stress until 2007. On 15 July 2008 the Occupational Health Department assessed the complainant as being fit for duties.
4.3 On 3 July 2002 the complainant was promoted to Assistant Chief Officer, despite concerns about the complainant's sick leave record.
4.4 The respondent submits that the complainant has given no direct comparator for the incidents on 24 December 2007, 7 July 2008, 17 October 2008, 25 January 2009, 30 January 2009, 7 March 2009, April 2009 when he was placed on non payment of sick leave, 5 February 2010 and, in the absence of a comparator, he cannot show that he was treated differently.
4.5 Following the incident on 24 December 2007 the complainant applied to have time off he took designated as injury on duty and this was granted. The complainant was directed to engage with the prison service's welfare service. The respondent considers they have fulfilled their duty of care.
4.6 The respondent denies that the complainant made a written request to be moved on 11 February 2009, as there is no record on his personnel file. Furthermore, they are not aware of the cited ACO being allowed floating duties.
4.7 In relation to the incident on 21 April 2009 the complainant has not identified the other prison officer who was excused night duties temporarily. The respondent submits that it assesses the merits of each case. Any refusal would not be based on a disability. The prison requires 2 ACOs for night duty every night and the refusal of the complainant's request would have been for operational reasons. None of the senior officers mentioned by the complainant can remember the phone calls. Also, the medical report referred to by the complainant is not on his personnel file.
4.8 Regarding the transfer of a female officer in March 2009 the respondent submits that they provide reasonable accommodation where possible while attempting to preserve the operational capacity of the service. They have no specific information on the officer cited by the complainant. Regarding the transfer of another ACO to a temporary position this was done after an arm injury. Also they have no record of a formal request from the complainant to be relieved of night duties.
4.9 In relation to the complainant's sick leave record the respondent says they wrote numerous letters to the complainant between 27 April 2009 and 26 April 2010 about placing him on sick leave without pay. He appealed the decision but the decision was upheld. The complainant was given the opportunity to provide a doctor-to-doctor report to the Chief Medical Officer but chose not to submit a report.
4.10 In August and September 2009 when the complaint submitted his claims to the Equality Tribunal the respondent submits that they had not yet made any judgement regarding the level of the complainant's capability for his role and in accordance with section 37 (3) of the Acts they considered him fully competent.
4.11 The respondent denies that the complainant was ever harassed on the basis of his disability. With regard to the incident on 7 July 2008 the complainant made no complaint that the incident amounted to harassment due to his disability. The meeting on 17 October 2008 was in accordance with their procedures and the remarks are denied; in fact Governor A empathised with the complainant. The complainant submitted a report regarding the threat of hostage taking but the complainant refused to name the person who made the threat. No complaint of harassment was made. The complainant made no complaint of alleged harassment in related to disability following the incident on 25 January 2009. The allegations regarding the incident on 5 February 2010 are denied. The complainant made no complaint that his allegations amount to harassment because of his disability.
5. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 I have to decide if the complainant was discriminated against on the grounds of disability in relation to promotion, if the respondent failed to provide reasonable accommodation and if he was harassed. 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 The respondent contends that many of the incidents detailed by the complainant were out of time in accordance with the Employment Equality Acts. Section 77 (5) of the Acts states:
(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly."
The complainant made claims on 26 August and 22 September 2009 and they relate to events arising from an incident on Christmas Eve 2007 and he contends there a number of related incidents up to 21 April 2009. Having considered this issue I conclude that the incidents are related and the last incident is within the time limits set out in the Acts. I will therefore consider all incidents from Christmas Eve 2007.
5.3 At the hearing the complainant stated his claim in relation to promotion related to the extension of his probationary period after his promotion to Assistant Chief Officer in 2002 until 2005. I do not intend to go into any details of this claim as it is clearly out of time in accordance with section 77 (5) of the Acts.
5.4 This is a claim in relation to Section 2 of the Acts states: "''disability'' means --
(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."
The complainant claims he has a disability within the meaning of the Acts, in that he was diagnosed with depression in 1996 and whilst this was well regulated with medication he had a recurrence in 2007 which led to a number of incidents. The respondent accepts the complainant has a disability and given the medical reports following these incidents I accept that the complainant had a disability within the meaning of the Acts.
Provision of Reasonable Accommodation
5.5 The complainant alleges the respondent failed to provide him with reasonable accommodation in relation to a number of incidents on the basis of his disability.
5.6 Firstly, after the incident on Christmas Eve 2007 the complainant alleges that a protocol for serious incidents was not followed properly by the respondent. Governor A gave evidence that none of the staff involved in the incident appeared in distress and he did not consider it a critical incident. From his own evidence the complainant confirmed that all staff involved were treated the same. The complainant was off sick for one week then returned to work without raising any issues. He therefore presented himself as competent to undertake his duties.
5.7 On 30 January 2009 the complainant met Governor C to discuss difficulties he was having at work and contends he asked about moving to floating ACO duties. Governor C gave evidence at the hearing that the complainant looked for the meeting and told him that he had personal family problems and was having difficulty coping with the job as a consequence. He had spoken to the Welfare Officer about the complainant. He states that he did not receive the written request of 11 February 2009 but would have considered his request to move if he had received the letter. Chief Officer D gave evidence at the hearing that he could not recall getting the letter to pass on to Governor C. He would generally record such letters but he had no record in his diary of receiving the complainant's letter. It is clear that Governor C was aware the complainant was having difficulties coping at this time but as far as he was aware the difficulties were personal and not related to his disability. He says he would have considered a request for a move but contends such a request was not made in the meeting and he did not receive the letter. Given the two different versions of events I cannot be definitive as to whether Governor C received the letter or not. It is clear that a request for a move to floating ACO duties was not considered but the respondent contends they had nothing to consider. Furthermore Governor C gave evidence that such a role did not exist. I note that the complainant did not follow up on his letter when he received no reply.
5.8 The complainant suffered what he described as a 'debilitating episode' during the night shift on 7 March 2009. By his own admission he had some form of breakdown and was unable to carry out his duties for a number of hours. This results in breaches regarding the running of that area of the prison for which he was responsible. Consequently the complainant was put on a code of discipline. The respondent gave evidence that a decision was made not to bring the disciplinary action to a conclusion. Following the incident the complainant took 50 days certified sick leave with depression and acute anxiety.
5.9 When he was planning to return to work the complainant rang up and asked to be excused nights on a temporary basis. This was to allow him to return to work but not on nights which was his first set of shifts when he was scheduled to return. The complainant was concerned that the incident on 7 March 2009 had occurred on a night shift and he considered a return on day shifts would facilitate his return after a long absence. When his request was refused he faxed in a certificate from his GP supporting his request. He rang back and was told to come in on the night shift he was scheduled to work. As he felt unable to return to work on nights, and was on non-payment for sick leave, he took one week's leave. The witnesses for the respondent agreed that the initial request was turned down; primarily for operational reasons. Governor C acknowledged he received the faxed doctor's certificate but confirmed he did not change his decision not to grant the complainant's request to be excused nights. The main reason given was an industrial dispute which made it difficult to arrange cover at short notice. The respondent also stated that the complainant could have tried to arrange his own swap with a colleague.
5.10 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."
5.11 When the complainant made his initial request to be excused nights this was refused by the respondent who took the view that if he was fit to return to work then the complainant was competent to undertake his duties on whatever shift he was rostered to work. The complainant considered he would be fully competent to undertake his duties if he was allowed to be excused night duties for a week. When his initial request was refused he submitted a doctor's certificate which supported his request. The certificate confirmed that the complainant had been off work since the beginning of March 2009 and he was awaiting an appointment with a Psychologist. It went on:
"I would like to make the following recommendations which would hopefully avoid continuing absence from work in the future:-
1. I would recommend that he be excused all night duties. They affect his sleep after finishing a shift, and obviously this will affect his mood.
2. It may be helpful to offer a variation in his regular duties and not to continue on regular duty posts as is the current situation.
In my opinion these changes would improve (the complainant's) mood disorder and enable him to continue to work in the future."
This certificate sets out what the doctor recommends for the complainant to avoid continuing absence from work, i.e. what appropriate measures he considered would be needed for the complainant to be fully competent to undertake his duties. The complainant also gave examples where three members of staff, including two ACOs were given reasonable accommodation. The respondent contends that all cases are dealt with on their individual merits.
5.12 The Labour Court in A Health and Fitness Club v A Worker (EED037) (and upheld on appeal in the Circuit Court) sets out an approach which can be used when an employer is considering whether an employee is or is not fully competent to undertake their duties and does or does not require reasonable accommodation to do so. The Labour Court approach was; "before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
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."
5.13 In order to satisfy the first stage they needed to look 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." The evidence adduced at the hearing by the respondent's witnesses was that the initial request was turned down for operational reasons and when the doctor's certificate came in later the same day it was not considered. Therefore, the respondent failed to looked at the medical evidence available. I note that the medical certificate was placed on the complainant's file in the prison and HR in IPS Headquarters were unaware of it until this claim was made. Therefore they were not in a position to advise local management.
5.14 I note the complainant was only looking for one week away from night shifts but I conclude that the respondent was aware that the complainant had a disability and failed to meet their obligations under section 16 of the Acts by failing to properly consider the complainant's request for reasonable accommodation, by ignoring the doctor's certificate and that this amounts to discriminatory treatment in relation to his disability.
5.15 The complainant alleges harassment in relation to the incidents on 7 July 2008, 17 October 2008, 25 January 2009 and 5 February 2010. Section 14A (7) of the Acts states:
"references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds .... being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person".
5.16 The complainant contends that he was harassed during a meeting in July 2008 with Governor A to discuss sick leave he was told to 'get over it' and that he was 'dragging out his complaint'. The complainant says the incident upset him so much he had to leave work. Governor A could not remember who asked for the meeting but he accepts the complainant did say he was having a difficult time. He mentioned about resuscitating a prisoner in 1996 and although he could not remember he may have said the best way forward was to get on with it. In this respect he noted that the complainant had been promoted since the 1996 incident and was working in a high security area. Governor A denies saying the complainant was dragging out the problem.
5.17 In October 2008 the complainant contends that, after he reported an incident when he was threatened with being taken hostage, Governor A harassed him when he berated and humiliated him in front of staff and told he was not fit to wear the uniform after he could not identify the prisoner who had issued threats about taking him hostage. Furthermore, he was given no chance to reply. The complainant contends Governor A would have known the difficulties he was having and had a go at him because of these difficulties. Another officer gave evidence for the complainant that he heard raised voices coming from an office. He contends he went into the office and Governor A was 'roaring and shouting' at the complainant and told him he was not fit to wear the uniform. He went with the complainant to another office and subsequently the complainant needed to go home. Governor A gave evidence that the complainant did not say that he did not know who made the threat but he said that he could not tell him because he had family. In the conversation he confirmed he was insisting on getting the name for the security of the prison. He also gave evidence that he did not shout and no one could have heard their conversation from outside. He further denies making the derogatory comments. He confirms that the witness came into the office and he made him aware of the situation. The witness then asked to speak to the complainant privately and they left. Governor A confirmed that he aware the complainant was having a difficult time but did not consider that he had a disability. He contends that he would have treated anyone the same in the circumstances.
5.18 The complainant contends that he was harassed on 25 January 2009 when Governor B questioned him in front of staff regarding the role of staff in the area he was working and he later found out he was being watched on CCTV. Governor B gave evidence at the hearing that on the day in question he was doing his rounds when he noticed no staff were on duty on a particular landing. When he approached there were a number of staff in the office, who dispersed when he got nearer. In these circumstances he spoke to the complainant as the officer in charge of the landing. Approximately 20 - 25 minutes later, as part of his rounds, he was in the console room and noticed there were no staff patrolling the landing. Chief Officer D was accompanying Governor B on the rounds and confirmed the events as stated by him, and that in the meeting in the office there was no argument or shouting.
5.19 The complainant contends he was harassed on 5 February 2010 when he was asked for the random search recording journal in the visitors' area, when no such journal existed and there was nowhere to carry out the searches. Governor F gave evidence at the hearing that when carrying out an inspection of the visitors' area he spoke to the complainant, as the officer in charge, about search logs and facilities. He contends the conversation was of no great importance and the complainant was fine when he left him.
5.20 On the balance of the evidence presented the incidents would appear to have been dealing with work related events. Given the nature of the work such incidents can be stressful in themselves but that is part of the job. The complainant may have found some of the incidents difficult but I can find no evidence that any of them were related to his disability.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent:
- did not harass the complainant
- discriminated against the complainant in failing to even consider the provision of reasonable accommodation in relation to his return to work in April 2009.
I order the respondent to pay the complainant €10,000 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
24 September 2012