The Equality Tribunal
Employment Equality Acts 2000 to 2011
EQUALITY OFFICER'S DECISION
(Represented by David Bradford)
Public Appointments Service
(Represented by Tony Kerr B.L. instructed by the CSSO)
Date of Issue:7 August 2013
Employment Equality Acts - discriminatory treatment - disability - reasonable accommodation - victimisation - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Karen Bradford that she has been subjected to discriminatory treatment by the Public Appointment Service on the grounds of her disability within the meaning of Sections 6 of the Employment Equality Acts and contrary to the provisions of Section 8 of those Acts. She further alleges that the Public Appointments Service failed to provide her with reasonable accommodation in terms of Section 16 of the Acts. She also alleges that she was subjected to victimisation in terms of Section 74 as a result of making a complaint about the alleged discriminatory treatment.
1.2 Ms Bradford referred a claim of discrimination to the Director of the Equality Tribunal on 22 October 2010 under the Employment Equality Acts. On 21 December, 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 20 March 2013 and a further day's hearing was held on 4 April 2013. Final supplementary documentation was received by the Tribunal on 9 May 2013.
2.1 The complainant is registered as having a disability with the National Rehabilitation Board. She was involved in two traffic accidents and as a result suffered serious neck, back and hand pain. The complainant took a case of discrimination on grounds of disability against the respondent to the Equality Tribunal in 2007 and the Equality Officer found that the respondent had failed to provide reasonable accommodation to the complainant and awarded the complainant €6000 by way of compensation. The Equality Officer found no evidence to substantiate the complainant's claim of harassment on grounds of disability.
3. Summary of the Complainant's case
3.1 The complainant states that in or around the Summer of 1999, she sat an examination for the position of Clerical Officer in the Civil Service. This was a recruitment competition for persons with a disability. As a consequence of multiple car accidents, the complainant states that she suffers from severe recurring back pain and as a result cannot write or type for prolonged period of times. The complainant was successful in the competition and commenced employment on 9 April, 2001 with the Office of the Civil Service & Local Appointment Commissioners (now known as the Public Appointments Service). She was assigned to duties in the reception area of the respondent organisation in their building at Abbey Street, Dublin where the complainant says that she worked for nine months. Subsequently, she was assigned to duties in the Business Support Unit where she worked for approximately six months. The complainant states that in July 2002, she was transferred to duties in the Paramedic Recruitment Section. In this area, the complainant states that she was required to do large amounts of typing and this tended to aggravate her back and neck condition and due to her disability she says this work was not suitable for her. As a consequence of this assignment, the complainant states that she was caused severe physical pain and injury and her level of sick leave escalated. The complainant contends that the assignment by the respondent of unsuitable duties with full knowledge of her disability constitutes discrimination under the legislation. According to the complainant, she repeatedly requested a transfer to more suitable duties but all her requests were ignored. The complainant states that she did not receive an increment in April 2003 or again in April 2004. The complainant also contends that she was subjected to bullying and harassment by her supervisors and some of her colleagues. The complainant made a claim of discrimination to the Tribunal in April 2005. The Equality Officer in her decision dated 8 May 2007 found that the respondent failed to provide reasonable accommodation to the complainant by way of undertaking appropriate measures to enable her to carry out all the duties attaching to the clerical officer post. The Equality Officer found no evidence to substantiate a complaint of harassment on grounds of her disability.
3.2 The complainant returned to work with the respondent on 16 June 2008 following a two year absence on sick leave and states that she was met with total negativity from staff and supervisors alike. She states that the HR manager gave out to her for not giving a week's notice of her return to work. She contends that he requested her to leave the premises and that the CMO would have to meet with her to certify that she was fit to return to work. The complainant states that she requested the HR manager to give her a letter stating that she was to leave the building which he did. The CMO arranged to see her on 29 July 2008 and found her fit to return to work. The complainant made enquiries regarding a transfer from switch operation duties verbally on a number of occasions prior to her going out on sick leave in June 2006 and following her return in 2008. In particular, a verbal request was made to the respondent when the complainant returned to duties in October 2008. This request was put to the PO in HR Division and he stated "we have nowhere else to put you". She was placed back on switchboard duties. The complainant states that following further correspondence and dialogue between the complainant and the Disability Liaison Officer commencing in March 2010 relating to assistive equipment (mouse and keyboard), the complainant again sought a transfer in writing to mainstream recruitment duties within the organisation. The complainant states that the provision of further assistive equipment sought and a transfer to another business area were denied by the respondent. The complainant contends that the assistive equipment request was prompted and encouraged by the Disability Liaison Officer only to be denied by HR Division.
3.3 The complainant states that the STAR computer system in the organisation was not compatible with the Dragon assistive technology which she used and that management deemed it too expensive integrate it into the STAR system. She alleges that the respondent was aware that no Department/Office would agree to allow her transfer in and it used the rationale that she may transfer and therefore they could not justify the cost involved to make her assistive technology compatible with the STAR system. She also requested a transfer to the Business Support Unit in 2010 but this was not facilitated. The complainant argues that while the respondent in its correspondence of 4 February and 14 February 2011 offered to engage the services of a company with expertise for persons with back and neck issues to assist with her return to work as she was absent on sick leave at this time; the respondent had ample opportunity since April 2001 (when she commenced employment with the respondent) to establish what requirements were necessary in order to make reasonable accommodation for her disability. The complainant states that this offer was only made subsequent to the complainant submitting a further equality claim to the Tribunal. The complainant states that in previous correspondence by the respondent dated 18 August and 19 October 2010, the respondent states that it had already made substantial investment in assistive technology for the complainant and did not view further investment as being warranted. The complainant submits that as a result of the discriminatory treatment, she has suffered loss of increments and has had no opportunity for career progression.
3.4 The complainant is also alleging that she was victimised by the respondent. The complainant states that the respondent acted in a vexatious manner by withdrawing its appeal at the Labour Court in respect of the first case on the day of the Labour Court hearing. The complainant states that this led to her incurring significant additional costs in barrister's fees and solicitor representation on the day. The complainant also contends that on her return to work in June 2008, she was verbally reprimanded in an aggressive manner by the HR manager for not giving prior notice that she proposed to return to her post. The complainant states that the most recent instance of victimisation was in August 2010 when the HR manager singled her out for undue supervision as opposed to other work colleagues in relation to a flexi-clock issue. She states that she had arranged for cover for the switch as she was attending a meeting with a solicitor during core hours (i.e. between 10.00 and 16.00). On the day of the appointment, her cover did not turn up and she rang HR unit and said she had a meeting arranged and requested cover for the switch. She states that she got up in a hurry and rushed out and forgot to clock out and similarly she forgot to clock back in on her return. Subsequently, she received a letter from her from HR unit reprimanding her for the incident and demanding an explanation for same. She states that in this regard, she was issued a warning which was unfair, unwarranted and disproportionate. The complainant also submits that her brother was unsuccessful in his application for a position that was advertised by PAS and that this was evidence of further victimisation of her.
4. Summary of Respondent's case
4.1 The respondent states that the complainant after a prolonged absence of two years sick leave reported for duty on 16 June 2008 without prior notice and claimed that she was fit to return with a doctor's note to confirm this. The respondent states that in line with their policy on long-term sick leave, she was informed that she would have to attend the CMO in order to confirm that she was fit to return to duty and to ensure that suitable accommodations were put in place prior to her return. On the day in question, the respondent states that HR received a number of complaints from staff that the complainant's behaviour was both intimidating and aggressive when staff tried to inform her of procedures and had requested her not to be taking photographs in the HR Unit. On 17 June 2008, she informed the HR manager that she would not be providing a doctor's report to the CMO as her doctor stated "it was none of their business" and continued to insist on returning to work without seeing the CMO. The respondent states that she called to the office again on 18 June to collect various office policies in relation to the above and continued to behave in an aggressive and confrontational manner. The respondent states that the complainant was placed back on the payroll from 16 June 2008 and eventually supplied a doctor's report to the CMO in mid July. The CMO arranged to see her on 29 July and found her fit to return to work. The complainant returned to duties on 10 November 2008.
4.2 The respondent states that following the complainant's return from long term sick leave in June 2008 following a two year absence, a workplace accommodation form was issued to the her in relation to accommodations she would need in addition to those previously provided. She subsequently rang a member of management asking about the form and accused the office of having her blacklisted so that she now has a bad credit rating and could not get a loan. She was assured by management that this had not happened and that she could have an extra week to return the form if she was having any difficulty in getting a specialist to sign it. The respondent states that she called to the office on 14 August 2008 and advised that she would not be signing the form until her voice-activated software was working properly. She was informed that a new package would be ordered for her and this was subsequently installed. The respondent then wrote to the complainant on 25 September 2008 informing her that the package was installed and she could return to work on 6 October, 2008. On receipt of the letter, she contacted two members of management to say she was stressed and anxious about returning to work and wanted a transfer out of the organisation. As a consequence of this development, HR advised the CMO to see the complainant before she returned due to her claims of stress and anxiety. She was deemed fit to return by the CMO and returned to duty on 10 November 2008. On 5 March 2009 the complainant requested extra duties and she was given an area of work previously carried out by one of the other clerical officers. On 28 September, she requested that these duties be taken off her as there was too much typing involved and her request was granted.
4.3 In July 2010, the complainant was asked to perform reception duties approx. four hours per week as were other clerical officers on switch duties. The respondent states that she refused and supplied a letter from her doctor to support her request that she be excused and exempted from such duties and that the situation be reviewed after a six month period. The respondent submits that an additional reason for the complainant remaining on switch duties is the fact that area involves a small team and there is not much face to face contact with staff. The complainant had complained on a number of occasions about having to come into contact with staff that she previously made a bullying and harassment complaint against. As this applied to a large number of staff, the respondent did not have any way of ensuring that the complainant did not meet these persons working in a recruitment area as it is an open plan area. The respondent states that it had to ask such staff not to enter the room in which the complainant is working as she had complained about being stressed when such incidents occurred. The respondent also states that the complainant had requested a separate tea-room in order to avoid meeting such staff.
4.4 As the complainant had requested a transfer to a recruitment unit by letter dated 9 September 2010, a member of IT unit was requested to establish if its recruitment application was compatible with the complainant's software package. The respondent states that she was informed that this was being considered by letter dated 19 October 2010 and therefore she cannot claim that the transfer was being offered as a result of her claim to this Tribunal which the respondent was notified in a letter dated 26 October 2010. The respondent states that the complainant again refused to engage in the process of identifying the accommodations required for her to work in a recruitment unit and refused the offer of an independent mediator with expertise in identifying the accommodations required in this role. The respondent states that while the complainant requested a transfer to a recruitment unit, the complainant also claimed that dealing with the public caused her stress and anxiety. The respondent contends that a substantial amount of clerical officers work in recruitment units are required to deal with the public, candidates and board members on a face-to-face basis. However, the respondent states that while it was willing to examine the requirements needed for her to work in a recruitment unit, the complainant did not engage in the process. The HR manager stated that in relation to the posts in Business Support Unit, 40% of these duties involved lifting and carrying boxes containing files some of which are off site and moving furniture and that this work would not have been appropriate to the complainant given her disability.
4.5 The respondent states that during the development of their current recruitment application, the consultants engaged to deliver the project were asked to estimate the cost of making the STAR system fully compatible with the assistive technology used by the complainant. The respondent states that due to the potential cost involved and the fact that the complainant had repeatedly requested a transfer out of the organisation, it was felt that the expenditure could not be justified. The respondent states that the IT unit produced a detailed report on the areas of its recruitment facility which are compatible with assistive technology and those areas which are not compatible. The areas which are not compatible require very little typing. The respondent states that the delay between the production of this report and the offer of a transfer to a recruitment unit is due entirely to the complainant being on sick leave since October 2010. The respondent states that it is not the policy of its organisation to offer a transfer to any staff members on sick leave as most posts need to be filled once identified. The respondent states that any attempt to expand the complainant's current role has been met with obstruction by the complainant. The respondent states that every effort was made to organise a transfer for the complainant to another Department/Office on her request and that letters were issued to numerous Departments/Offices but no offers of transfer were received in respect of the complainant.
4.6 The disability liaison officer met with the complainant on a number of occasions following her return in November 2008 to determine which assistive technology would be the most appropriate and opted for Dragon naturally speaking version 10 and the respondent purchased the software for same at a cost of €1000. The STAR package was rolled out in 2010. The expert from the IT company who installed the system stated that the Dragon software must be used regularly and as a result it gets better. The respondent argues that the fact the complainant was out on prolonged sick leave, this did not happen. The respondent argues that the Dragon assistive software is between 60% to 80% compatible with the STAR system and with the keyboard and mouse assistive technology allocated to the complainant it brings it up to almost 100% compatibility with the STAR system and it would have cost circa €36,000 to get the Dragon package fully compatible with the STAR system. The project manager of the STAR system gave evidence to say that the STAR package was designed to manage all aspects of the respondent's business. It was to deal with large volumes and manage all stages of the recruitment processes and was designed to replace three other systems. The respondent used external consultants to install and develop same with accessibility in mind. The project manager stated that the STAR package cannot be accessible with one niche system for example with the Dragon assistive technology and it would take circa €36,000 to make it compatible with STAR. However, as it stands, it is designed to be up to 80% compatible with various assistive technologies including Dragon software. The project manager stated that they were in dialogue with staff of the National Disability Authority regarding the design and setting up of the package in 2010 and got a gold award from the NDA in recognition of the website and the system for its accessibility features to assist persons with disabilities accessing their service.
4.7 The respondent states that at no stage was the complainant singled out or victimised. The respondent submits that although it is a small organisation, transfers were arranged for the complainant on a number of occasions at her request, a facility not available to most staff. The respondent also submits that the complainant was allowed avail of work-sharing and change her work pattern without providing the required six week notice and also availed of unpaid leave on a number of occasions. She was also allowed to return to work from sick leave on a part-time basis on full pay. Following her return to work in 2008 after taking a case to the Tribunal, the respondent contends that it went out of its way to ensure that the complainant was made aware that she would not be treated unfavourably in any way due to the case she had taken. She was placed back on full pay as soon as she was declared fit to return to work even though she refused to co-operate with the various policies in place. The complainant has also stated that she was victimised, in that, her brother applied and was unsuccessful for one of the recruitment campaigns run by the respondent. The respondent submits that this case was reviewed on appeal by the respondent and her brother's appeal was unsuccessful. The respondent contends that his candidature was judged entirely on the basis of his application and performance in the assessment process.
4.8 In relation to the flexi-clock issue, the complainant was asked by HR for an explanation of a serious breach of the flexi policy (i.e. being clocked in and not in the office). The respondent states that this is a HR management function and in no way could be classified as victimisation and no disciplinary action was taken once the complainant submitted her explanation for same. Other staff are notified similarly when such instances occur and requested to give an explanation for same. In relation to the Labour Court appeal of the Equality Officer decision in 2007, the respondent submits that on the day of the appeal hearing, it decided not to continue with the appeal which it is legally entitled to do. The respondent contends that there is no basis to the claim of victimisation in this regard. In relation to the complainant's claim of victimisation in relation to loss of increments; the respondent states that as her sick leave record was greatly in excess of satisfactory levels, her increments were not awarded in accordance with HR policy.
5. Conclusions of Equality Officer
5.1 I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court1, whilst examining the circumstances in which the probative burden of proof operates, held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."
5.2 The complainant has alleged that she was discriminated against on the grounds of her disability by the respondent. Disability" is defined in Section 2 of the Acts as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
It was accepted by both parties that the complainant's condition is a disability within the meaning of the Acts. The complainant submits that she has not been permitted to perform the full range of duties of clerical officer and disputes that she was provided with reasonable accommodation. Therefore, the matter I have to consider is whether the respondent provided the complainant with appropriate measures in accordance with Section 16 of the Acts.
5.3 Section 16 of the Acts provides:
"For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person's employer.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer,
(4) In subsection (3)-
"appropriate measures" in relation to a person with a disability -
(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for herself or herself;"
5.4 At the outset of the hearing, the complainant raised issues which were ventilated with the previous Equality Officer in connection with alleged complaints of harassment and the complainant sought to raise these same issues as alleged acts of victimisation in the current complaint. In this regard, the complainant was advised that issues which were raised with the previous Equality Officer and on which the previous Equality Officer made rulings could not be re-examined in the current complaint. The first issue raised by the complainant in relation to alleged discrimination on grounds of her disability is that on her return to work following and absence of circa 2 years on sick leave, she submits that she was met with total negativity from staff and supervisors alike and that she made go to see the CMO even though her own doctor had certified her fit to return. Having examined the evidence and testimony of individuals at the hearing, I can find no evidence to back up this allegation. The complainant turned up at the office and HR in conjunction with civil service policy requested that the complainant would have to be seen by the CMO and certified fit to return to work. This was stated and long established policy as is the case for any employee on a long term sick leave of absence. I am satisfied that the complainant has not demonstrated prima facie evidence of discriminatory treatment on grounds of disability on this issue.
5.5 The respondent states that a workplace accommodation form was issued to the complainant in relation to accommodations she would need in addition to those previously provided. She subsequently rang a member of management asking about the form and accused the office of having her blacklisted so that she now has a bad credit rating and could not get a loan. She was assured by management that this had not happened and that she could have an extra week to return the form if she was having any difficulty in getting a specialist to sign it. The respondent states that she called to the office on 14 August 2008 and advised that she would not be signing the form until her voice-activated software was working properly. She was informed that a new package would be ordered for her and this was subsequently installed. The respondent then wrote to the complainant on 25 September 2008 informing her that the package was installed and she could return to work on 6 October, 2008. On receipt of the letter, she contacted two members of management to say she was stressed and anxious about returning to work and wanted a transfer out of the organisation. As a consequence of this development, HR advised the CMO to see the complainant before she returned due to her claims of stress and anxiety. She was deemed fit to return by the CMO and returned to duty on 10 November 2008. I am satisfied that in line with HR policy once the complainant stated to management that she was anxious and stressed about returning to work and wanted a transfer out that they felt bound to refer her to the CMO on those issues. I note that although the complainant did not return to work until 10 November 2008, she was placed back on the payroll from 16 June 2008 the day on which she arrived back to work after a prolonged absence. The reason her return date was 10 November was due to the delay in furnishing a doctor's report to the CMO and when she further stated she was stressed and anxious HR deemed it necessary to have a further consultation with the CMO to ensure she was fit to return to duty. I find that this was reasonable under the circumstances and I can find no evidence of discriminatory treatment in that regard.
5.6 The disability liaison officer with the respondent gave evidence at the hearing and I found him to be a very frank and credible witness. I am satisfied that he actively engaged with the complainant to assist her with any assistive technology that would help her following her return to work in November 2008. He met with her on a number of occasions to determine which assistive technology would be the most appropriate and following consultation opted for Dragon naturally speaking version 10 and the respondent purchased the software for same at a cost of €1000. The expert consultant who was involved in designing and setting up the STAR system advised that the Dragon software was 60 - 80 % compatible with the STAR system and together with the assistive keyboard and mouse would bring it up to 100% compatibility. He also stated that the Dragon software must be used regularly and as a result it gets better. The respondent argues that the fact the complainant was out on prolonged sick leave, this did not happen. The expert also advised that it would have cost circa €36,000 to get the Dragon package fully compatible with the STAR system. Having heard the evidence and testimony given on this issue, particularly from the expert in the IT area, I am satisfied that the complainant has not raised prima facie evidence of discrimination on grounds of disability. While the complainant argues that she was discriminated in that the respondent did not integrate her assistive technology with the STAR system, I am satisfied from the testimony given by the IT expert that the Dragon software was 60 - 80 % compatible with the STAR system and together with the assistive keyboard and mouse would bring it up to 100% compatibility. Therefore, I am satisfied that the respondent could not justify integrating one particular assistive technology at a cost of €36000 particularly when that employee was actively seeking a transfer out of the organisation. I am satisfied that this measure would impose a disproportionate burden on the employer in accordance with Section 16 (3) of the Acts. The main issue appeared to be the lack of use of the assistive technology she had and the expert stated the more it is used, the more proficient it becomes. I am satisfied that the respondent did examine what accommodations were required for the complainant and they were made available and reasonable in the circumstances.
5.7 The complainant also submits that she was discriminated against by not been given a transfer to a post in the Business Support Unit. The HR manager stated that 40% of these duties involved lifting and carrying boxes containing files together with moving furniture and that this type of work would be totally inappropriate for the complainant given her disability. I am satisfied having examined this matter that given the complainant's disability which is severe recurring back, neck and hand pain that a transfer to the Business Support Unit would not be suitable on the basis of her disability. The complainant also stated that she had looked for a transfer to a recruitment unit and this request was not facilitated. The respondent states that it tried to engage with the complainant by identifying the accommodations required for her to work in a recruitment area but she refused the offer of an independent mediator to assist in identifying the accommodations required in this role. I am of the view that the respondent was actively trying to engage with the complainant in order that she be able perform her duties factoring in her disability but the refusal by the complainant of the engagement of the independent mediator frustrated this process. In trying to accommodate the complainant with other duties other than the switchboard, I am cognisant of the fact that she had previously made complaints of bullying and harassment about a number of colleagues and supervisors and she demanded that she not have to come into contact with them in her work and this resulted in an additional difficulty as to where she could work and for the respondent to ensure that she did not come into contact with these same individuals. I consider that given the respondent is a small organisation particularly with staffing levels at CO grade that the complainant's expectations were unreasonable and excessive.
5.8 The complainant also claims discriminatory treatment in that she was not facilitated with a transfer out of the organisation. Having examined the documentary evidence on this issue, I note that the respondent wrote a number of times to other Departments/Offices requesting a transfer for the complainant but none were forthcoming. I note from the file that the complainant was allowed avail of work-sharing and change her work pattern without providing the required six week notice and that she also availed of unpaid leave on a number of occasions. She was also allowed to return to work from sick leave on a part-time basis but on full pay. I find that the refusal of the complainant of the offer of an independent mediator with expertise in the area of workplace accommodations for persons with disabilities was unreasonable in the circumstances. I consider that the respondent which is a small organisation tried to engage in a bona fide process with the complainant with regard to putting in place suitable accommodations for her to perform her duties but that the complainant did not engage with the respondent and I find that her behaviour was unreasonable in this regard. Having examined all the evidence and testimony of witnesses in relation to the complaint of discriminatory treatment on grounds of disability, I am satisfied that the complainant has failed to establish a prima facie case of discrimination in this regard.
5.9 The complainant also submits that she was victimised by the respondent. In relation to the issue of victimisation, Section 74 (2) 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 by a complainant, ......."
In Tom Barrett v Department of Defence2 the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. It is clear from the wording of victimisation in the Employment Equality Acts that a complaint of victimisation must relate to a complaint made under the Act and not a general complaint of victimisation. The complainant is alleging that she was victimised as her brother was not successful in a recruitment campaign run by the respondent. The respondent submits that this case was reviewed on appeal by the respondent and her brother's appeal was unsuccessful. The respondent contends that his candidature was judged entirely on the basis of his application and performance in the assessment process. In any case, for a complaint of victimisation to be upheld, the adverse treatment must be against the complainant and not the complainant's relative. The complainant also states that she was victimised as a result of the respondent only withdrawing the appeal at the Labour Court and that she incurred solicitor and barrister's fees as a result. I am satisfied that it is a right of either party at any stage to decide to withdraw or not to appeal a decision and can find no basis for a complaint of victimisation in this regard. In relation to the flexi clock issue, having taking all the evidence and testimony on this matter, I find that the HR manager was well within his rights to request an explanation as to why she had not clocked out when going to an appointment with a solicitor during core time. I note that as soon as she provided an explanation for same, the matter was dropped. I can find no evidence on this issue to sustain a claim of victimisation. The complainant has submitted that she is also being victimised as a result of the loss of increments and constraints on her career progression. Having examined the evidence on this matter, the loss of increments is attributable to her sick leave absences and is in line with HR policy and she did not provide any evidence to the Tribunal in relation being denied access to promotional opportunities. I can find no evidence to sustain a claim of victimisation on these issues. Overall, in taking all the evidence into consideration regarding the allegations of victimisation, I consider that the complainant was not subjected to victimisation in terms of section 74(2) of the Acts.
6. Decision of the Equality Officer
6.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that
(i) the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts.
(ii) the complainant was not subjected to victimisation by the respondent in terms of section 74(2) of the Acts.
7 August, 2013
1 Arturs Valpeters v Melbury Developments  21 E.L.R. 64.
1 Arturs Valpeters v Melbury Developments  21 E.L.R. 64.