The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-047
(Represented by Tiernan Lowey B.L. instructed by Crimmins Howard Solicitors)
The National Association of Travellers Centres
(represented by Peninsula Business Services (Ireland) Ltd.)
File reference: EE/2010/272
Date of issue: 23 May 2013
HEADNOTES: Employment Equality Acts - Sections 6, 8 and 16 - Disability - Conditions of Employment - Harassment - Victimisation - provision of reasonable accommodation.
1.1 This dispute concerns a claim by Mr Karl McGealy that he was discriminated against by the National Association of Travellers Centres Limited on the grounds of disability contrary to section 6 (2) (g) of the Employment Equality Acts in relation to conditions of employment in terms of sections 8 of the Acts, that the respondent failed to provide him with reasonable accommodation in accordance with section 16 of the Acts, that he was harassed in accordance with section 14A of the Acts and that that he was victimised in accordance with section 74 (2) of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 14 April 2010 under the Employment Equality Acts. On 4 September 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 and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 4 December 2012 and final information was received on 25 January 2013.
2. COMPLAINANTS' SUBMISSION
2.1 The complainant started working for the respondent in October 2003. He submits that at the end of 2005 he sought a second youth worker because of the workload and for health and safety reasons. The complainant experienced difficulties discharging his work duties because of the lack of resources, support and assistance. He raised these matters informally with his superiors but a satisfactory response was not achieved. Subsequently he filed grievances to try and resolve the issues through formal procedures. He submits that as a consequence of raising the grievance he was micro managed, excessively monitored, belittled and bullied
2.2 As a result of a number of traveller suicides the complainant submits that he suffered from work related stress and during the summer of 2007 the respondent funded a number of therapy sessions for him. After the sessions he was advised they would only pay a contribution towards the overall cost. The manner in which the respondent dealt with the issue caused him further stress.
2.3 In January 2008 the complainant wrote to the respondent regarding the conditions of his employment. Around this time at a local area advisory committee meeting he was deemed to be uncooperative by the respondent and subsequently received a verbal warning.
2.4 During the summer of 2008 the complainant raised a number of issues regarding work conditions which were either not dealt with or not dealt with properly.
2.5 On 3 July 2008 the complainant saw an attack by youths he was due to work with. He found it an upsetting and traumatic experience. He sought assistance from the respondent but got no effective support and his health suffered. During 2008 he was certified unfit to work by his GP due to work related stress. On 24 October 2008 the complainant attended an Occupational Health Physician and he recommended an investigation into the complainant's concerns and recommended that he attend counselling.
2.6 In October 2008 the complainant submits that he was told by the respondent that they had received a complaint of misconduct about him. This related to a chance meeting with the person who made the complaint when he was not working. The complaint was investigated without reference to the complainant and he was told to apologise. Even though he had been threatened with physical violence and verbally abused by the person who had made the complaint in an incident in March 2008.
2.7 The complainant submits that his GP referred him to a Psychiatrist for therapy/advice. He also attended a Psychologist for therapy/treatment. The complainant believes the psychologist produced a report for the respondent but the report was never given to him.
2.8 As a result of the ongoing concerns about the complainant's terms and conditions of employment and his work environment the respondent commissioned a report which was finalised 23 August 2008 but only given to the complainant in April 2009. It concluded that a lack of communication was a major factor in the breakdown of the relationship between the complainant and the respondent. It recommended that an external facilitator be appointed to bring the complainant and the respondent together.
2.9 The respondent appointed someone to replace the complainant while he was absent from work. The complainant submits he was prevented from returning to work until October 2009.
3. RESPONDENT'S SUBMISSION
3.1 The respondent submits that when they took over the day-to- day management of the complainant's employment his terms and conditions were different to the other youth workers employed by them. He was paid a higher rate of travel and subsistence, his personal phone bill was paid in full and he had received a pay rise over and above all the other youth workers.
3.2 In April 2007 a young female traveller committed suicide which was a distressing event for all concerned. The respondent recommended the complainant avail of counselling sessions and they verbally approved six sessions. The complainant requested additional sessions and four more sessions were approved. The respondent considers they were supportive to the complainant at this time.
3.3 Following a meeting of the Youth Work Advisory Committee on 16 January 2008 the CEO wrote to the complainant to arrange a meeting to discuss his behaviour. Subsequently, a verbal warning was not issued because, on 6 March 2008, the complainant indicated that he wanted to leave his employment with the respondent. Then on 11 March 2008 he notified the respondent that he was going on stress related sick leave. He returned to work on 19 May 2008, after his sick leave, and a verbal warning was issued about his behaviour at the meeting in January. The complainant appealed the verbal warning on 14 July 2008 and he was advised that his appeal was not made in accordance with the respondent's policy. On 14 October 2008 the complainant was advised that the verbal warning was no longer on his file.
3.4 Following the incident at the Gym in July 2008 the complainant wrote to the CEO who replied telling him to ring the CEO if he needed to speak to anyone. The complainant gave a statement to the Gardai. The individuals involved in the incident were not participating in the youth project which was being run by the complainant and there were a large number of other witnesses. The respondent held a meeting on 10 July 2008 to discuss the gym incident and a number of things were agreed, including suspending the club, carrying out a health and safety audit on the Ennis Project and allowing the complainant to attend three sessions with a psychologist. A further three sessions were later approved. On 16 July 2008 the complainant filed a complaint and he was advised that stage 1 of the grievance procedure had to be invoked. Then on 22 July 2008 the CEO told the complainant to stop all youth activities work in Ennis area until further notice.
3.5 The respondent confirms they received a complaint about the complainant in August 2008 in relation to an incident in July 2008 and earlier incidents. A meeting was arranged but the complainant refused to meet the person who made the complaint. No investigation was carried out, as alleged by the complainant, and he was not asked to apologise.
3.6 On 15 September 2008 there was a meeting with the complainant and it was decided to appoint an independent investigator to look into the complainant's grievances. On 23 September a detailed 51 page complaint was submitted by the complainant was forwarded to the investigator. The investigator found every part of the allegations to be unfounded. She did recognise that relationships had broken down when the respondent took more control of the finances and workings of the Ennis Project. She recommended a meeting between all parties to consider and agree on communications going forward. The complainant met the investigator in December 2008 but, through illness, he was not in a position to respond to her notes of the meeting until 20 February 2009. He received a copy of the report on 14 April 2009.
3.7 On 24 October 2008 the complainant attended an independent occupational health doctor and on 24 November 2008 the CEO wrote to the complainant giving him a copy of the doctor's report which recommended further treatment with a consultant psychologist. The report also stated that the "current symptoms are solely due to personal disharmony with his employer and not work related". Between March and June 2009 the complainant attended six sessions of therapy.
3.8 After first seeing him in February and then meeting him on a number of occasions the consultant clinical psychologist reported to the occupational health doctor on 30 June 2009. The report confirmed the complainant's sense of "unsafeness at work" and that he was suffering from work related stress and post traumatic anxiety. The complainant had a further appointment with the occupational health doctor on 11 September 2009 and on 28 September 2009 the doctor reported to the CEO that the complainant's health had settled to normal. On 19 October 2009 the complainant was certified fit to return to work on a part-time basis. On 23 October 2009 the CEO had a meeting with the complainant and an independent facilitator and an action plan was agreed. This included the complainant starting back to work on 17.5 hours per week for 4 weeks and then 28 hours per week and five working options for the complainant's work in the future, as well as agreements on a number of issues raised by the complainant.
3.9 On 24 November 2009 the respondent received a letter from the complainant's solicitor which raised the same issues as were investigated by the independent investigator. There followed protracted efforts by the respondent to address the issues but the complainant was advised not to attend meetings with the respondent by the solicitor. The respondent submits they were then unable to implement either the recommendations in the investigator's reports or those made in the medical reports because of the complainant's refusal to engage in face-to-face communications with them.
3.10 The respondent contends that the complainant was not genuinely interested in adjustment or reasonable accommodation. They submit that they took all reasonable measures and this included paying over €8,000 in psychotherapist fees, mediator fees, psychologist fees, occupational health fees and counselling, and they undertook a Health & Safety Audit.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was discriminated against in relation to conditions of employment, if he was harassed and victimised on the grounds of disability and if the respondent failed to provide the complainant with reasonable accommodation. 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.
4.2 The complainant has stated he asked for a second youth worked at the end of 2005. He also referred to a number of incidents which showed the difficulties he contends he had carrying out his work and what he considered to be a lack of support from the respondent and that his health was affected. Section 6 of the Employment Equality Acts states:
"(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ''discriminatory grounds'') which --
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned".
This means that the role of an Equality Officer is not to investigate the cause of a disability but to find if discrimination took place because someone has a disability.
4.3 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."
Initially, therefore, I have to consider whether the complainant had a disability within the meaning of subsection (e) and if he did when the respondent was aware of it. The complainant was on sick leave from 18 March to 19 May 2008 and from 1 April the medical certificates indicated the complainant was suffering from stress. He was again on sick leave from 13 October 2008 until October 2009. He saw an Occupational Health Doctor on 24 October 2008 who acknowledged that he was "under the care of his GP to assist his symptoms of anxiety" and stated "it is anticipated his health will recover shortly". The complainant was referred to a Consultant Clinical Psychologist who carried out an initial assessment on 5 February 2009, followed by six further sessions between March and June 2009. The consultant issued a Psychological Report on 26 June 2009. The report showed that the complainant had undertaken a number of tests which initially "placed him in the mild clinically depressed range of functioning" and the consultant stated "following my initial assessment of Mr McGealy, it was my professional opinion that he was suffering from work-related stress and post traumatic anxiety." The complainant went back to the Occupational Health Doctor on 10 September 2009 who had received the Consultant Clinical Psychologist's report and he stated "I am glad to report that the interventions recommended have been successful. I feel his health has now settled to normal." He recommended that the respondent meet the complainant to "discuss and resolve his workplace concerns prior to a return to work. I feel once these issues have been discussed and concluded, Mr McGealy will be fit to return to work at that time. I recommend a phased return to work for Mr McGealy."
4.4 At the hearing the complainant submitted that he presented with symptoms of stress and anxiety and this put the respondent on notice that he was suffering from a disability. The respondent countered that stress is not a disability and cited Labour Court Determination EDA 094 which states: "The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell  IR 327). Nevertheless no statute can be construed so as to produce an absurd result or one that is repugnant to common sense. That common law rule of construction has now been given statutory effect by s.5(1) of the Interpretation Act 2005. It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity." In this claim the complainant submitted certificates stating he was suffering from stress and at this time I conclude that is was reasonable for the respondent to take the view that the complainant's illness fell within the category of "the ordinary human reaction to stressful situations". The complainant gave no indication to the respondent that he was suffering from a disability within the meaning of the Employment Equality Acts. I conclude that the respondent could only be said to have knowledge that the complainant was suffering from a disability when they received a copy of the Consultant Clinical Psychologist's report in January 2010. The respondent acted on the recommendations of the Occupational Health Doctor's report of September 2009 regarding the complainant's return to work. They had a meeting with the complainant on his return to work with an independent facilitator present. The meeting discussed the issues raised by the complainant and also agreed a gradual return to full time hours. The respondent tried to deal with the issues raised by the complainant but after the intervention of his solicitor the complainant chose not to attend any meetings with the respondent.
Provision of Reasonable Accommodation
4.5 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."
The complainant contends he was prevented from returning to work until October 2009 but there is no evidence that he was not sick during this period and did not submit any certificate from his own doctor saying he was fit to return, nor did he write to the respondent seeking a return to work. Furthermore, as stated previously, he was reviewed by the Occupational Health Doctor and the respondent followed his recommendations. This, together with a Health and Safety Audit carried out in September 2008, led to a second member of staff being appointed to the Ennis Project in January 2010. Whilst the complainant was not happy with the respondent's actions I accept that they made reasonable efforts to facilitate the complainant's return to work and took appropriate measures.
4.6 The complainant has provided no evidence that he suffered harassment or victimisation within the meaning of these terms in the Employment Equality Acts on the grounds of his disability.
4.7 All of the complainant's claims in relations to conditions of employment related to incidents before the complainant was suffering from a disability and he is therefore unable to demonstrate a prima facie claim of discrimination on the grounds of disability.
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
- the respondent did not discriminate against the complainant in the provision of reasonable accommodation,
- the complainant was not harassed,
- the complainant was not victimised, and
- no discrimination took place in relation to conditions of employment.
23 May 2013