FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : LIMERICK AND CLARE EDUCATION AND TRAINING BOARD (REPRESENTED BY IBEC) - AND - JOHN COTTER DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 11th March, 2013. Labour Court hearings took place on the 9th October, 2013 and on 20th February, 2014. The following is the Court's Determination:-
DETERMINATION:
This is an appeal under Section 83 of the Employment Equality Acts by Mr Cotter (the Complainant) against Equality Officer Decision No DEC-E2013-00 which foundthat the Complainant was not discriminated against on the grounds of gender, sexual orientation and disability, in relation to a failure to provide reasonable accommodation, conditions of employment contrary to the Employment Equality Acts 1998 - 2012. The Equality Officer further found that the Complainant's claims of harassment and victimisation under the Act were not well founded.
The Complainant referred his complaint under the Acts to the Director of the Equality Tribunal on 1st April 2008.
Background
The Complainant is a Secondary School Teacher who began his employment with the Respondent, Limerick & Clare Education & Training Board, formerly the Vocational Education Committee in September 1982. He has been employed at his current School since November 1988.
In February 2005 a student questioned the Complainant about his sexuality in a Civic, Social and Political Education class. The Complainant replied in the following terms "I am a lesbian trapped in a man's body".
Around the same time the parents of four children in his class complained to the school Principal that the Complainant was ineffective in managing the class.
The Principal met with the Complainant on 3rd May 2005 after which he agreed to take “administrative leave” on full pay. The Complainant was asked and agreed to attend a Consultant Psychiatrist for psychiatric assessment. He attended the Psychiatrist on 17th May 2005. The Psychiatrist issued a report to the VEC in October 2005. The report was made available to the Court. The Psychiatrist stated that the Complainant was suffering from depression and that his illness would be exacerbated were he to return to work. He recommended that he return to his GP to undergo a course of medication and treatment before returning to work.
He met again with the Psychiatrist on 2nd September, 2006 who again declared him unfit to return to work. The Complainant was then placed on sick leave commencing 23rd May 2007. In and around July 2007 the Complainant attended another Consultant Psychiatrist for assessment and treatment. On 5th October 2007 the Complainant submitted a medical certificate from that Doctor, a Consultant Psychiatrist and Psychotherapist, stating that he was fit to resume work.
The Respondent passed that certificate to it's Medical Advisor, in this case the Psychiatrist who had examined the Complainant in 2005 and 2006, for advice. He stated that he required further details of the Complainant's condition before advising the Respondent. The Respondent asked the Complainant to put the request for further particulars to his own Psychiatrist. He did so but his Psychiatrist declined to engage in that process. He so advised the Respondent. The Respondent arranged for it's Chief Executive to meet with the Complainant in January 2008. However, the Chief Executive, due to illness. was not available to meet the Complainant in January as arranged. No further meetings took place and the Complainant submitted a complaint to the Equality Tribunal on 1st April 2008.
Preliminary Issues
The Respondent states that the complaint is statute barred. It argues that the Complainant is required by Section 77(5) of the Act to make the complaint to the Tribunal within six months of the date of occurrence of the discrimination or victimisation to which the complaint relates. It argues that the alleged act of discrimination, the classroom comment made by the Complainant, took place in 2005 and the complaint was not filed with the Tribunal until the 1st April 2008. It argues that the complaint was not filed within six months of the date of the alleged act of discrimination and is statute barred.
The Complainant argues that he was in process and correspondence with the Respondent regarding the matter until at least 5th October 2007 when he submitted a certificate of fitness to return to work. He argues that the complaint cannot therefore be statute barred.
Findings of the Court
The Complainant raises three issues which he alleged were acts of discrimination or victimisation and or a failure to reasonably accommodate his return to work :
1.The incident that occurred in class in February 2005 during which, in answer to a question from a pupil, he said he was “a lesbian trapped in a man’s body” for which he claims he was placed on administrative/sick leave and referred for medical/psychiatric assessment. He states that by its response to that statement and by referring him for medical assessment it discriminated against him on the gender and sexual orientation grounds.2.The decision of the Respondent to refuse to allow him return to work on a phased basis amounts to a refusal to offer him reasonable accommodation within the statutory meaning of that term.
3.He claims that he was victimised because he had successfully taken an earlier claim under the Act against the Respondent. He further argues that he was further discriminated against because he had filed a complaint under the Act of discrimination on the Age ground that was scheduled for hearing in April 2008
Section 77 (5) of the Act states :
"Subject to subsection (6), 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 the occurrence or, as the case may be, the most recent occurrence of the act of discrimination or victimisation to which the case relates".
There are a number of issues in dispute in this case.
The Court finds that the first issue, the Complainant being placed on administrative or sick leave is a stand alone issue and not one of a series of occurrences. The Complainant agreed to take administrative leave and it was agreed by all that he was unfit for work. There can be no question of victimisation or a failure to provide reasonable accommodation. If the Complainant was of the view that he had been discriminated against in any way by being placed on sick leave, he could have brought a complaint under the Act within six months of that occurrence. The Court does not believe that that action can be linked with the alleged failure to provide reasonable accommodation in relation to the Complainants fitness to return to work in October 2007. The Court notes that the certificate of fitness to return to work submitted by the Complainant notes that he first commenced attending the certifying Doctor in July 2007 and was not declared fit to return to work until October of that year. Accordingly, the Court finds that the Complainant was unfit for work until 5th October 2007. In those circumstances the Court sees no continuation between the initial placement of the Complainant on administrative leave by agreement and subsequently on sick leave following medical certification on the one hand and the Complainant’s complaint that when fit he was not accommodated with a phased return to work as recommended by his Doctor. Accordingly, the Court finds that portion of the Complainants claim is statute barred.
The second issue for the Court to decide is whether by it’s failure to engage with and make accommodation for him when he was cleared to return to work, albeit on a staged basis, amounts to a failure to make reasonable accommodation for him, the Respondent was in breach of it’s obligation under Section 16 (3) of the Act which states;
"3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employee.
On this point the Respondent's alleged failure to provide reasonable accommodation for the Complainant, the Court finds that the Complainant submitted a certificate that he would be able to return to work at least on a phased basis on 5th October 2007. By letter dated the 2ndNovember 2007 he was refused permission to return to work until certain further details were supplied to the Respondent’s Medical Advisor. His complaint is that this response was entirely inappropriate and did not constitute a reasonable accommodation of his disability. In so far as his disability related to his gender, it also constituted discrimination against him on the gender ground.
His Doctor refused to engage in that process. The Complainant's contention is that notwithstanding his Doctor's refusal to participate in the process there were a number of other steps which the Respondents could have taken which would have enabled them to accommodate his disability. The Complainant replied to the letter of 2ndNovember on the 12thNovember taking issue with the correspondence he had received regarding the Respondent’s Psychiatrists’s assessment of his Doctor’s certification. He concludes that letter by asking that he be allowed return to work. He then, on the 1st April 2008 submitted a complaint to the Tribunal. Two days later the VEC wrote to the Complainant asking him to attend a nominated Doctor for independent medical assessment. At that point the matter had been referred to the Tribunal under the Act.
Decision
The Court finds that the decision not to permit the Complainant to return to work on a phased basis or at all in October 2007 was within the six month time period permitted under the Acts . Accordingly, the Court finds that the complaint is within time and is not statute barred.
Penalisation
The Complainant states that he was penalised or victimised by the Respondent within the meaning of the Act.
Penalisation or Victimisation occurs wherethe dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—
- (a)sought redress under thisActor any enactment repealed by thisActfor discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
- (b)opposed by lawful means an act which is unlawful under thisActor which was unlawful under any such repealed enactment,
- (c)given evidence in any criminal or other proceedings under thisActor any such repealed enactment, or
- (d)given notice of an intention to do anything withinparagraphs (a) to (c).
The Court deals with this Complaint further below.
Request for a Public Hearing
The Complainant requested the Court to conduct the hearing in Public. The Respondent objected to a Public Hearing arguing that the matter should be dealt with in private as no purpose would be served by conducting the hearing in public. It also noted that the Determination of the Court would in time be made public and generally available to the public.
Findings of the Court
The Court notes that Section 79(2) states:-
"(2)An investigation under thissectionshall be held in private unless, at the request of one of the parties to an investigation by the Labour Court, that Court determines to hold the investigation, or so much of it as that Court does not consider should be treated as confidential, in public".
Decision
Having considered the submissions of both parties to the Complaint the Court decided that the issues raised should in the first instance be investigated in private and decided accordingly.
Substantive Issue
Complainant’s Case
The Complainant states that he is a qualified Teacher and has professionally discharged the duties of his post. He states that when he experienced difficulties at work, School Management failed to support him in an appropriate manner. He submits discipline logs in evidence that disclose that he recorded a large number of disciplinary incidents during his time at the school. He states that he was applying the official disciplinary code and was not supported by School Management in doing so. He states that this failure to support him undermined his standing with the pupils and the parents alike and led to a number of complaints by parents regarding his work.
He states that during a class dealing with Civic, Social and Political Education he was discussing human sexuality and related matters. He states that he responded to a question regarding his own sexuality in the manner outlined above. He states that he did this to encourage debate and to assist the class come to terms with sexual identity issues which some teenagers face. He states that seen in context the remark was appropriate to the class subject matter under discussion. He states that the decision to place him on administrative leave because of that comment is difficult to reconcile with his duties as a teacher of a subject that addresses sexual identity issues for teenagers. He states that the logical conclusion is that the school came to the conclusion that he was not heterosexual and decided to remove him from the classroom. By deciding to refer him for psychiatric assessment it is logical to conclude that it deemed such a condition a disability which it imputed to him.
He argues that the psychiatric diagnosis of him is not correct. He argues that he attended another Consultant Psychiatrist who certified him medically fit to return to work and recommended that he be returned to work on a phased basis. He argues that the Respondent did not accommodate him in this regard. Instead, it imposed unusual conditions on him requiring him to have his Doctor go further than simply certifying him fit for work. He states that his Doctor refused to engage in that process. He states that he was at that point certified fit to return to work, initially on a phased basis, and should have been facilitated accordingly.
He states that at the time he was certified fit for work there was an obligation under Section 16(3) on his employer to take such appropriate measures as might be required to enable him to undertake his duties on a phased basis as he was not fit for an immediate return to full time working. He states that this incapacity was the result of the manner in which he had been treated by the Respondent. He states that having been so certified, the Respondent was aware of his disability and of the accommodation he was seeking to facilitate a return to work. He submits that the Respondent did not engage with him in that context, rather it sought to deny that he was fit for work and placed obstacles in his way. He states that between October 2007 and April 2008 he was denied reasonable accommodation when the Respondent refused to assess his need for and it's capacity to provide for a phased to return to work as recommended by his Doctor.
He states that these actions constitute discrimination on the sexual orientation and disability grounds. He states that discrimination on the sexual orientation ground occurred because the decision to refuse him permission to return to work was influenced by the Respondent’s hostility to the gender identity issues it imputed to him. He states that discrimination on the disability ground occurred because of the Respondent’s failure to engage with him to establish the accommodation he sought to facilitate a return to work following a period of illness which it diagnosed as depression which amounts to a disability within the meaning of the Act.
Finally, he states that the Respondent’s attitude towards him was influenced in large measure by the fact that he had taken successful proceedings against it under the Act and was in the process of taking fresh proceedings on the age ground under the Act.
Respondent’s Case
The Respondent states that the Complainant was experiencing difficulties at work over a prolonged period of time. In 2005 four parents made complaints regarding his capacity to manage the class. In addition he advised Management that he was experiencing coping difficulties. It stated that he had made an inappropriate comment to a class in response to a question regarding his sexuality. In the circumstances it was agreed by both the Complainant and the Respondents that a period of administrative leave would benefit the Complainant. He was also asked to attend for medical assessment. The Respondent refers to Sections 8 and 12 of the Safety Health and Welfare at Work Act 2005 in this regard.
The Complainant attended a Consultant Psychiatrist selected by the Respondents in May 2005 and again in September 2006. He was placed on sick leave in May 2007 on foot of a report from the Psychiatrist that declared him unfit for work.
In October 2007 the Complainant presented a medical certificate from a Consultant Psychiatrist declaring him fit for work. It recommended that he return to work on a phased basis. The Respondent states that it referred that letter to the Consultant Psychiatrist who had previously examined the Complainant and he was not prepared to alter his diagnosis and advice without a considerably more detailed report from the Complainant’s Psychiatrist. The Respondent asked the Complainant to request that report and pending further advice from it's Medical Advisor did not permit the Complainant to return to work. That report was not forthcoming and the Complainant remained on sick leave up to the date on which the complaint was filed with the Tribunal under the Act.
The Respondent submits that it was in correspondence with the Complainant until December 2007 and arranged a meeting between him and the Chief Executive of the VEC for January 2008. Unfortunately, that meeting did not take place due to the absence from work through illness of the Chief Executive.
The Respondent states that it at all times acted in accordance with its duties under the Safety Health and Welfare at Work Act and or it's general duty of care to its employee. It removed the Complainant from a stressful environment and sought professional advice as to his capacity to continue at work. That advice was that he was not fit to return to work. The Respondent argues it had no alternative but to act on that advice.
It argues that it reviewed the certificate of fitness to return to work signed by the Complainant’s Doctor. It submitted it to its own medical advisor who required further information before he could advise the Respondent to permit the Complainant return to work. That requirement was conveyed to the Complainant. He failed to elicit the additional information required. It argues that it complied with the Act at all times and denies discriminating against the Complainant.
Findings
The Act prohibits discrimination on the grounds of disability. Where a person suffers from a disability the Act places an obligation on an employer to make reasonable accommodation to enable a person with a disability to return to work.
The Complainant agreed to take administrative leave in 2005 when the incident in the classroom occurred and the complaints from four parents had been received. The Court also finds that the Complainant agreed with Management that he was under stress and a period of leave would benefit him. The Court also finds that the Complainant agreed to attend the Respondent’s Psychiatrist for a medical assessment.
It is common case that the Complainant was in due course diagnosed as suffering from a disability and was placed on sick leave in May 2007. Between July and October of that year the Complainant attended his own Consultant Psychiatrist who, by certificate dated 5th October 2007, certified him fit to return to work on a phased basis initially. He so notified the Respondent.
The Respondent referred the certificate to it's Doctor for advice. He withheld giving advice until he had further information. The Respondent directed the Complainant to elicit that information from his Doctor. His Doctor refused to co-operate and stood over his certification.
The Court notes that this sequence of events placed the Respondent in a difficult position. The Complainant was certified fit to return to work. Yet it's Medical Advisor would not confirm that prognosis until he had further information.
The question for the Court to answer is whether by allowing this state of affairs to continue the Respondent took all appropriate measures to ensure that the Complainant, as a person with a disability, could with reasonable accommodation, be fully competent and capable of undertaking his duties.
The Court notes that at this time the Respondent’s Medical Advisor had not seen the Complainant for almost 12 months. The Court also notes that the certificate states that the Complainant’s Doctor had been reviewing him over several months and was happy that he was fit for work initially on a phased basis.
The Respondent did not refer the Complainant at that point to it's Medical Advisor for an updated examination.
Accordingly, it's subsequent actions were based on a report that was 12 months old and could not be deemed current. The only current information available to the Respondent was that the Complainant was fit for work.
The Respondent had a number of options open to it. It was quite entitled to take medical advice as to whether the Complainant was or was not fit to return to work on a phased or full time basis or at all. It was also entitled to refer the Complainant for a further assessment by it's own Medical Advisor in order to establish his current medical condition. It was also entitled to seek to agree an independent medical expert to resolve any conflict between the two Medical Advisors acting on behalf of the Complainant and Respondent respectively.
However, it did none of these. Instead it asked the Complainant to return to his Doctor to query the certificate he had issued. His Doctor refused to engage in that process. He reported that fact to the Respondent. The Respondent at that point had the option of conducting it's own assessment of the Complainant’s capacity to return to work. It did not do so or at least delayed in doing so. It arranged a meeting between the Complainant and the Chief Executive to take place in January 2008. When this did not go ahead as planned, for very understandable reasons, it did not rearrange the meeting or otherwise progress the matter.
Eventually the Complainant, after six months had elapsed, filed the instant complaints with the Equality Tribunal.
In considering the information before it, the Court is of the view that the Respondent did not take appropriate measures to accommodate the Complainant's disability. The Court finds that the Respondent was unsure how to proceed in the best interests of both the Complainant and the children he would be charged with educating. However, the appropriate step to take was to engage with the Complainant in a timely manner to establish his medical condition by way of either a medical examination by it's own Doctors or by an agreed independent qualified Medical Specialist. That is the normal manner in which such matters would be resolved. The Respondent did not do that. Instead it neither arranged for a medical assessment nor accepted his Psychiatrists certificate as evidence of his medical condition.
The effect of this was to cause a delay in dealing with the matter. The Complainant was certified fit for work initially on a phased basis and was suffering from a diagnosed disability, in this case depression. He was seeking reasonable accommodation under the Act to enable him resume his career in teaching. The Act places an obligation on the Respondent to at least investigate the nature of the accommodation sought and to make a decision as to whether it can or cannot so accommodate the Complainant based on the findings of it's investigation.
In this case no such investigation took place and the Complainant was denied reasonable accommodation for a period of up to six months when he commenced the current proceedings.
The Court notes that the Respondent took steps to address that matter after the Complaint was filed with the Equality Tribunal. However, those actions lie outside the scope of this investigation.
The Court is satisfied that the Respondent’s response was related to the nature of the Complainant’s disability. It is also satisfied that it would not have treated a person suffering from a different disability in such a fashion. In the normal course of business the Respondent would have either referred the Complainant for a medical examination to it's Medical Advisor or have accepted his certificate and engaged with him regarding a phased return to work.
By failing to do so in this case the Court finds that the Respondent discriminated against the Complainant on the disability ground by failing to treat in him a manner similar to another person with a different disability or with none and by failing to reasonably accommodate his return to work.
The Court notes that the Respondent was acting out of concern for the Complainant and for the children he would be assigned to teach and was at a loss as to how to deal with the issue. However, the motivation of the Respondent, whether benign or otherwise, does not negative the effect of discrimination on the disability ground. Furthermore, a short delay in establishing the medical capacity of the Complainant with reasonable accommodation to discharge the duties of his post, may be excused, a delay of six months is not. Finally, the Court notes that the Respondent presented no evidence of any assessment of the Complainant’s accommodation needs to enable him to return to work as certified by his Doctor.
Determination
The Court determines that the Complainant on the disability ground is well founded and determines accordingly.
The Court is not satisfied that the gender ground has been made out. The Complainant made comments in 2005 regarding his sexual orientation. However, the Court finds that there was no evidence presented in the course of the investigation into this case that supports the Complainant’s contention that the Respondent imputed a gender identity to him. The Court finds that the Respondent at all times treated the Complainant as suffering from stress and depression and the medical diagnosis was that this had an effect on his judgement and on his capacity to manage his class. The issue at all times was not what he said but the context in which it was said and his mistaken assessment of the capacity and readiness of his students to cope with his response. The Court finds that this was not a gender issue but a professional judgement issue that was related to the Complainant’s stress and depression.
Determination
Accordingly, the Court determines that the complaint on the gender ground is not well founded.
The Court has also considered the complaint that the Complainant was victimised within the meaning of the Act.
The Court finds no evidence to support that contention. The Respondent at all times was responding to the medical advice it received both from it's own Doctors and the Complainant’s Doctors. It acted on that advice in what it thought was the best interest of the Complainant and of the School. The Court finds no connection regarding the manner in which the Respondent dealt with the Complainant and an earlier complaint he had made under the Act. Neither does the Court find any link between the actions of the Respondent in this case and subsequent complaint’s made by the Complainant on the age ground under this Act. Accordingly, the Court finds the Complaint of victimisation is not well founded.
Determination
The complaint of victimisation under the Act is not well founded.
Remedy
The Court orders the Respondent to pay the Complainant compensation in the sum of €7,500.
The Court further orders the Respondent to determine the Complainant’s medical capacity to work and to comply with the Act regarding the assessment and provision of reasonable accommodation to undertake the duties of his post if he is so medically fit to work.
Signed on behalf of the Labour Court
Brendan Hayes
15th May, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.