EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC- E2015-139
Ms Josephine Riney
Donegal ETB, formerly Co. Donegal VEC (represented by Niall Sheridan Solicitors)
File Reference: EE/2010/141
Date of Issue: 3rd December 2015
Table of Contents
1. Claim.. 3
2. Summary of the Complainant’s Written Submission. 4
3. Summary of the Respondent’s Written Submission. 5
4. Conclusions of the Equality Officer 6
5. Decision. 14
Keywords: discrimination – access to employment – promotion – conditions of employment – other – gender – marital status – family status – age – disability – reasonable accommodation – A Health and Fitness Club v. A Worker– process obligations of respondent employer - Delaney v. Central Bank of Ireland –harassment – victimisation – discriminatory dismissal – victimisatory dismissal.
1.1. The case concerns a claim by Ms Josephine Riney that Co. Donegal VEC discriminated against her on the grounds of gender, civil status, family status, age and disability contrary to Section 6(2) of the Employment Equality Acts 1998 to 2011, in terms of access to employment, promotion, conditions of employment, harassment and other discriminatory conduct and discriminatory dismissal. The complainant also complains of being victimised within the meaning of S. 74(2) of the Acts and, in the alternative to her complaint of discriminatory dismissal, of victimisatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 3 March 2010. A submission was received from the complainant on 20 January 2011. A submission was received from the respondent on 21 March 2011, and a further submission was received from the respondent’s representatives on 3 October 2012. On 4 September 2012, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to Ms Marian Duffy, 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. However, the parties indicated a desire to Ms Duffy to avail of the Tribunal mediation service and Ms Duffy duly referred the matter to mediation. The mediation process did not prove successful, however, and the case returned to investigation on 27 May 2015. Ms Duffy retired from the civil service in the following month. On 20 August 2015, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. Given that the complainant had not disclosed any specific disability in her submissions, I wrote to her on 4 September 2015, stating that
“I also note from your submission that you base your complaint on past disability, yet do not disclose what that disability is and do not enclose any kind of evidence to support this claim. It must be noted that stress doesnot qualify as a disability within the meaning of the Acts. I will be asking for proof of the existence of that past disability at the beginning of the hearing to satisfy myself that you have legal standing on the disability ground.”
1.3. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case, for two full days, on 5 and 24 November 2015.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that she commenced employment for the respondent as a teacher of mathematics, science and later, computers, since 1974. Until about the mid-1990s, the complainant seems to have experienced no problems in her employment, but from about that time, the complainant was confronted with increasing interpersonal difficulties. The complainant won a discrimination complaint on the ground of gender with regard to a promotion to the post of Assistant Principal, which was upheld by the Labour Court on appeal. According to the complainant, the respondent was slow to implement the Labour Court’s order in terms of back pay owed, the compensation ordered and the actual promotion which had been ordered. The complainant provides a long list of incidents, some of which are wholly outside a work context, which she feels constitute harassment and bullying by the respondent staff and its solicitor. She submits that the respondent never took any action with regard to these complaints.
2.2. In 2007, the complainant complained about being bullied by several pupils. This was investigated by the respondent and the pupils admitted to the behaviour complained about. However, the respondent decided not to sanction the pupils in question beyond the investigating process. This was communicated to the complainant by the principal who locked her office door for the meeting. After that meeting, the complainant submits that all the interpersonal stress which had built up over the years at work caught up with her, and she went on a lengthy sick leave, from January 2007 until June 2008. The complainant was certified fit for work by her specialist from 7 June 2008.
2.3. The respondent then requested that the complainant attend their occupational health service. The physician whom the complainant attended recommended, after the complainant had spoken to her about the stress and anxiety which her work environment caused her, that the complainant be reviewed by a named consultant psychiatrist. This does not appear to have been communicated to the complainant until she reported for work again at the start of the 2008/2009 school year.
2.4. The complainant refused to attend the psychiatric evaluation and argues that the respondent had not right to request this of her and that in terms of the Health, Safety and Welfare at Work Acts, this is in fact ultra vires. From her submission, she seems to be particularly incensed that the nominated consultant psychiatrist works at the Central Mental Hospital, which the complainant takes to mean that her assessment would have been a forensic psychiatric assessment. From correspondence submitted by the complainant, however, it is clear that after this complaint was lodged, the respondent was amenable to nominating a different psychiatrist, and that the complainant attended him. However, in this situation as well, the complainant refused the the actual assessment which would have enabled the psychiatrist to make a diagnosis, or find her healthy as the case may have been. According to the complainant, the respondent refused to allow her to report for work until such an assessment was furnished. It appears that this refusal to allow her back to work is at the core of Ms Riney’s complaint.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the complainant did not disclose any cause of action pursuant to the Acts; that anything which could be valid is now out of time and statute barred; and that the complainant’s statement is so unstructured and repetitious as to make it virtually impossible for the respondent to put in a coherent response.
3.2. The respondent further submits that the complainant had been absent on certified medical sick leave, in respect of the rolling four year period from 19 December 2003 to 7 January 2008, for the maximum permissible medical leave, that is, 365 days. Accordingly, the respondent sought to have the complainant independently medically examined pursuant to its obligations under both health and safety legislation and from employers’ duties at common law. The respondent notes that the complainant has consistently refused such an assessment.
3.3. The respondent also denies the complainant’s allegations with regard to bullying.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminated against, harassed, victimised or discriminatorily or victimisatorily dismissed within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. The complainant clarified at the hearing that she was not dismissed by the respondent prior to reaching retirement age in August 2011. Accordingly, her complaint of either discriminatory or victimisatory dismissal must fail.
4.5. The complainant adduced no evidence for discrimination on the grounds of gender, civil status or family status within the relevant time limit of six months prior to lodging her complaint, which was 3 March 2010. Accordingly, the time limit for those complaints would be 3 September 2009. Therefore these claims must also fail.
4.6. In terms of her case of victimisation, the complainant maintained that she was victimised after she successfully complained of discrimination with regard to a promotion to Assistant Principal. However, all her oral evidence related to events which took place in the early part of the century and which are years out of time pursuant to the provisions of S. 77(5) of the Acts and which I therefore have no jurisdiction to investigate.
4.7. In terms of her complaint of harassment, none of the incidents which the complainant described in her submission were harassment within the meaning of the Acts, that is to say, expressly related to the protected grounds. S. 14(7) of the Acts states that 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. [Emphasis added]
4.8. Only one incident which the complainant listed in her submission fulfils the criterion of being related to a discriminatory ground. It would have been the gender ground. If this incident took place as alleged by the complainant, it would have been a tasteless remark by a male manager, made to the complainant, about a skylight in the ladies’ bathroom in her school. However, this took place in the 1990s and is therefore wholly out of time. Accordingly, this part of her complaint must also fail.
4.9. In terms of her complaint of discrimination on the ground of age, it was the complainant’s contention that her age was a major factor in the main part of her complaint, namely, that the respondent requested her to undergo a psychiatric assessment before allowing her back at work. In the complainant’s opinion, the psychiatric evaluation was merely a move to “rubberstamp” her removal from her job. However, the complainant provided no evidence of an actual or hypothetical younger teacher in her employment, who would have been treated differently if he or she had had the same extensive sick leave record. Accordingly, her complaint on the ground of age must also fail.
4.10. With regard to her complaint of discrimination on the ground of disability, the complainant clarified that she does, and had never suffered, from a diagnosed disability. The complainant contends that by requesting her to undergo a psychiatric assessment, the respondent imputed a disability on her.
4.11. There are few cases in the Workplace Relation Commission’s, respectively the Equality Tribunal’s workload, which deal with the issue of imputed disability. One recent decision is DEC-E2015-080, Wypch v. Pagewell Concessions (Ilac) Ltd t/a €uro 50 Store, Ilac Centre, where it was held that a joking remark about the suitability of an elf hat was not harassment of the complainant who felt she suffered from protruding ears. The Equality Officer held that this remark did not impute a disfigurement on the complainant.
4.12. In the same decision, the Equality Officer had regard to DEC-E2006-042, Ms X v. An Electronics Company, in which the respondent imputed a disability of curvature of the spine to the complainant because she slouched. The complainant was dismissed for not having declared this supposed disability in her pre-employment medical. However, she did not have this disability, as medical evidence produced at the hearing demonstrated, and therefore won her case.
4.13. In the instant case, I am satisfied from the evidence that the respondent never imputed a disability on the complainant by jumping to conclusions about her health, in the manner of the Ms X case. Rather, the complainant had missed most of three full school years due to ill-health, which was certified by a consultant psychiatrist. Effectively, the complainant had been absent on certified medical leave for the 2005/06, 2006/07 and 2007/08 school years save for a few weeks at the beginning of each school year. Furthermore, she had been confirmed as fit to resume work each summer when her annual leave period started. The complainant confirmed these facts in her evidence. Essentially, the complainant had barely been present in her work place for several years.
4.14. Two significant complaints of the complainant in the course of her evidence were that she was not allowed back to work in the autumn of 2008, unless she consented to a psychiatric evaluation, and that a “Whole School Evaluation” carried out in 2007 had omitted her staff position. The respondent disputed this and said that her Assistant Principal position was listed in the evaluation report, but due to her absence, was not evaluated by the Department of Education and Skills. The complainant did not dispute this.
4.15. In terms of the requested evaluation by a consultant psychiatrist, the complainant also pointed out that neither by the relevant circulars from the Department of Education and Skills nor in terms of S. 23 of the Safety, Health and Welfare at Work Act, which had not been commenced at the material time, did the respondent have a legal right to ask this evaluation of her. This argument, together with a reference to her dignity and constitutional rights (which the complainant did not further specify) were at the centre of the three-year “standoff” which ensued between her and the respondent and which were at the core of her complaint.
4.16. However, I find that the complainant’s extensive sick leave absences over several years, together with the fact that her sick leave was certified by a consultant psychiatrist (without disclosing any diagnosis to the respondent), does engage the respondent’s obligations as set out by the Labour Court in A Health and Fitness Club v. A Worker EED037. An employer is obliged to make inquiries when such a situation arises, and the Court set out a two-stage procedure for this:
“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. [emphasis added]
4.17. Accordingly, I find that there is nothing unlawful in the respondent’s demand that the complainant be independently psychiatrically assessed. Mr Ó L., retired CEO of the respondent, clarified in his evidence that he suggested a psychiatric evaluation to the occupational health expert who had reviewed the complainant. I cannot accept the complainant’s argument that an assessment by an occupational health expert should have been sufficient, as occupational health experts do lack expertise in many medical specialties and are entitled to seek second opinions on matters outside their own field of expertise. Accordingly, the occupational health expert’s language in her report is very cautious, and she only notes that according to the complainant’s own specialist, the complainant is considered fit to return to work.
4.18. The complainant further argued that as per the normal procedure of the occupational health service, her own psychiatrist’s certification of being fit to return to work should have sufficed.
4.19. In the light of the pattern of the preceding three years, I cannot accept this. Had the respondent accepted this, it would have had no guarantee that the complainant would not go on yet another sick leave shortly into the school year, especially since it was in the dark as to what was ailing the complainant. In fact, in the course of her evidence, I found the complainant strangely oblivious to how unusual such an extended sick leave really is solely for reasons of stress, without any supporting diagnosis of a clinically identifiable physical or psychiatric illness.
4.20. Furthermore, I suggested to the complainant at the hearing, another psychiatrist may well have found her healthy, in other words, the outcome of the assessment was by no means a foregone conclusion.
4.21. For all of these reasons, I reject both the complainant’s argument that the respondent was imputing a disability on her within the meaning of the Acts, and that the respondent had no right to request her to undergo this evaluation.
4.22. At a late stage in the proceedings, the complainant sought to alter her argument from the position that the respondent had no right to request this assessment from her, to her reservations that the psychiatrist’s report would go directly to the respondent. However, given that this is normal procedure where such an independent evaluation is requested, it does not alter the position with regard to the respondent’s rights, or the complainant’s obligations.
4.23. However, a problem does arise in terms of how the respondent approached this. The respondent thought it acceptable to enclose copies of several letters of complaint which had been received from parents of pupils, first in correspondence with an occupational health expert and subsequently a consultant psychiatrist. Furthermore, the respondent did not make the complainant aware of this. Mr Ó L. confirmed these facts in his evidence and stated that this was for the reason of confirming with these specialists that the complainant would be able to handle the investigation of the complaints.
4.24. I cannot accept this reasoning. While I do not think that this step would have had the power of influencing the psychiatric diagnosis – many people, over the course of their working lives, are subject to complaints without ever being mentally ill – it does represent a grave violation of the complainant’s privacy and also violates the principle enunciated in A Health and Fitness Club v. A Worker that such enquiries must happen in cooperation with the affected worker. For this reason, I consider the respondent’s behaviour on this point to be unlawful conduct within the meaning of the Acts. The enquiries set out in A Health and Fitness Club v. A Worker for the purpose of assessing a respondent’s obligation under S. 16 of the Acts do not need to confirm the existence of a disability within the meaning of the Acts, but they do need to be carried out in line with the standards set down in that case. Accordingly, the complainant is entitled to succeed in this point of her case.
4.25. On the other hand, I find that it was not reasonable for the complainant to refuse to undergo the assessment at all. She could have raised the grievance about the defects in the process either with the respondent afterwards or by way of a complaint to the Tribunal. The respondent had an acute need to have exact knowledge of her state of health in order to meet its obligations under the Acts, and its common law duty of care obligation. While the respondent did not argue manpower planning concerns, it nevertheless seems obvious to me that this must also have been a consideration. Therefore I cannot find fault with the respondent for insisting on the assessment before letting the complainant return to work, and find that the fact that the complainant found herself with no work and no salary under these circumstances is simply her own doing. The respondent treated the complainant as being on ongoing, unpaid sick-leave until she was assessed, which I find was the correct thing to do under all the circumstances. The complainant could have ended this situation at any time by allowing herself to be assessed. Instead, the standoff mentioned above ensued.
4.26. The complainant had two complaints related to this period: (1) that the respondent hindered her access to employment when it refused to release her from school work for work with the State Examinations Commission in 2009 and 2010, and (2) that it highlighted to her that whilst she was eligible to compete for the position of Deputy Principal in her school in May 2011, she would have to undergo the psychiatric assessment prior to taking up duty. The complainant submits that this represents discrimination in access to employment and promotion, respectively.
4.27. Mr Ó L. stated that he had in the past refused to release teachers from school duty for work on the SEC, either because they were on sick leave, like the complainant, or because he considered them unsuitable. He denied any discriminatory motive.
4.28. Complaints about discrimination in access to employment normally cover competitions for open posts where someone with a protected characteristic is unsuccessful. However, I would think that exceptionally, one employer hindering an employee from accessing another employment as is the case here, could also give rise to such a complaint. That said, in the case on hand I am satisfied that Mr Ó L. could not in good conscience release the complainant to work on the SEC when her health was, from his perspective, in serious doubt, and she was absent from work duties for that reason. Similarly, I find that the respondent was within its rights to have this point clarified first, in case the complainant had obtained the position of Deputy Principal – it is not clear from the evidence whether she even applied – before consenting to letting her take up duty. Accordingly, these complaints must also fail.
4.29. The complainant cited three cases in her closing statements: Sweeney v. Ballinteer Community School 2011 IEHC 131; McSorley v. Minister for Education and Kilkenny VEC 2012 IEHC 201, and Delaney v. Central Bank of Ireland 2011 IEHC 212. The first case is a bullying case which attracted a lot of publicity when the decision was published. However, under the Employment Equality Acts, the Commission has no jurisdiction to deal with complaints of bullying. I already noted above that the complainant did not even come close to raising a valid complaint of harassment within the meaning of the Acts. Accordingly, this case is of no value to me in deciding the case on hand. The second case concerned a school principal in Co. Kilkenny who had a decision by the Minister for Education, to have her declared unfit for office on the basis of an investigation into complaints which were several years old, quashed. At the nub of that case is the question as to whether a disciplinary action, in that case, dismissal, is proportionate or not. I fail to see the connection to the matter on hand as the complainant was neither disciplined nor dismissed, and the respondent’s refusal to let her return to work was due to lack of reliable information about her health, as set out extensively in the preceding paragraphs.
4.30. The third case cited by the complainant, and one more relevant to her complaint, was Delaney v. Central Bank of Ireland. At the centre of this case is the respondent’s request to have Mr Delaney assessed by the psychiatrist Dr M., after Mr Delaney made a complaint of bullying which was investigated and where no bullying, but instances of inappropriate behaviour were found. Mr Delaney had not been attending a psychiatrist, although like the complainant, he had a history of sick absences for stress, albeit of much shorter duration than her. At the heart of the case is the process which the employer followed in terms of the referral, which entailed forwarding Dr. M. documents of which Mr Delaney had no knowledge. It was held that this was in breach of fair procedures. While I have not expressed my own findings in paragraph 4.24 above in the same language as the High Court – I also need to note that the powers of the High Court in Judicial Review proceedings are wholly different from those of the Commission under the Employment Equality Acts – I nevertheless wholly concur on the overall unlawfulness of such an approach, and my finding in this case confirms this.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent discriminated against the complainant in the manner in which it carried out its obligations pursuant to S. 16 of the Acts, by not notifying the complainant of materials sent to her assessing doctors in advance of appointments set up for her and generally not sufficiently involving her in that process.
5.2. In accordance with Section 82 of the Acts, I hereby order that the respondent pay the complainant €10,000 in compensation for the effects of the discrimination. I am aware that this is a relatively large award for what might be seen as a process breach. However, I regard the violation of the complainant’s rights in this matter as quite serious. Therefore, in relation to the issue of compensation, I have had regard to the Judgment of the European Court of Justice in Von Colson & anor v. Land Nordrhein-Westfalen Case 14/83 ECR 1984 wherein it was stated that for the purpose of imposing a sanction for a breach of the prohibition of discrimination:
........ in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation……..
The award is not in the nature of pay and therefore not subject to tax.
Adjudication Officer/Equality Officer
3 December 2015