EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-142
(Represented by Ms Kara Turner JMB/AMCSS, Secretariat of Secondary Schools)
File reference: EE/2013/297
Date of issue: 9 December 2015
1.1 This dispute concerns a claim by an employee that she was discriminated against by her employer on the grounds of disability contrary of Section 6 of the Employment Equality Acts and contrary Sections 8 of the Acts, in relation to her conditions of employment, in relation to failure to be given reasonable accommodation for her disability, Harassment and Victimisation .
1.2 The claimant referred her claim to the Director of the Equality Tribunal on 17 June 2013 under the Employment Equality Acts. On 21 September 2015, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Ray Flaherty, 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 28 September 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 CLAIMANTS' SUBMISSION
2.1 The claimant started work for the respondent in September 1992.
2.2 The claimant submits that in December 2008 she was diagnosed with Multiple Sclerosis. However, there was no noticeable deterioration in her situation until the latter part of the 2010/2011 academic year.
2.3 The claimant submits that a new Principal (MMC) was appointed to the school in September 2011. According to the complainant the new Principal showed little regard for her condition and ignored her requests for reasonable accommodation.
2.4 The claimant stated that the timetable given to her in August 2012 for the 2012/2013 was proof that her requests for reasonable accommodation had not been taken on board. She claimed that unsuitable tasks had been assigned to her while others, which she considered more suitable, were removed. As evidence of this the claimant stated, inter alia, that she was assigned three Junior Cycle Home Economics groups and no Senior Cycle group.
2.5 The claimant submits that her referral for an occupational health assessment in October 2012 by the school principal was unbalanced and inaccurate. The claimant also stated that when the report from the occupational health doctor acknowledged that practical cookery classes would pose a difficulty for her, the principal, rather than seeking approval for the necessary accommodation from the Department of Education and Skills (DES) offered her own solution to the problem. This involved the principal and the deputy principal taking turns to assist the claimant in the practical cookery classes. The claimant submits that this arrangement was unworkable and was an affront to her dignity and left her feeling undermined. The claimant further stated that, as a result of this unworkable solution, she was left with no option but to produce a sick cert to cover the practical classes.
2.6 The claimant submits that she was informed by the principal on 19 December 2012 that DES had approved additional hours for another teacher to be employed to take the practical cookery classes. The claimant further states that she was to be employed for resource classes during those periods.
2.7 The claimant submits that, as a result of her dissatisfaction with the application of this accommodation, she wrote to the principal on 24 January 2013 requesting a full review of her situation. According to the claimant this request led to an increase in the aggressive behaviour towards her by the principal which she evidenced as increased demands for meetings and a second referral to occupational health.
2.8 The claimant submits that, despite a number of reminders, she received no written response to her letter of 24 January 2013. On the contrary, she received a request from the principal to meet with her to discuss the matter. However, the claimant stated that, given the number of discussions she had with the principal in this regard, she refused this request to meet as she felt unsafe in the presence of the principal during meetings in her office.
2.9 In a further example of her alleged discriminatory treatment by the school/principal, the claimant referred to an incident of cyberbullying, which arose from comments made on Facebook by students which pertained to the claimant's class. The claimant submits that the school's response to her raising of this issue was in stark contrast to the manner in which complaints against her from two sets of parents, who objected to the manner in which she (the claimant) disciplined their daughters, were dealt with. In particular, the claimant raised issues with the process and procedures used by the school in the manner in which these complaints were investigated/processed.
2.10 The claimant also raised an issue in relation to the manner in which the school/principal dealt with an issue regarding the final completion stages of the State Examination Commission (SEC ) reports.
2.11 The claimant also submits that the school's delay in having a proper occupational therapy (OT) assessment of her work situation, particularly that pertaining to her practical classes and working environment, was a further example of the failure to provide her with proper reasonable accommodation.
3 RESPONDENT'S SUBMISSION
3.1 In response to the claims made by the claimant, the respondent denied in full each and every allegation made including the deprivation of rights and reasonable accommodation. However, before dealing with the individual aspects of the complaint, the respondent initially set out a number of legal points which it is claimed undermined the allegation being made.
3.2 The respondent states that the submissions made and documentation provided by the claimant do not substantiate the claim referred to the tribunal in June 2013 and do not establish facts from which discrimination may be inferred, as is required by Section 85 (A) of the Employment Equality Acts (1998/2004).
3.3 The respondent next addressed the issue of time limits and, in particular, the application of Section 77 of the Acts.
3.4 With regard to Section 77 (5) of the Acts, the respondent submits that only complaints in respect of matters lodged within the time limit prescribed by this section should be considered. Additionally, the respondent submits that any complaints relating to matters occurring after June 2013, the date of referral of the claimant's complaint to the Equality Tribunal for investigation, cannot be investigated.
3.5 Notwithstanding and without prejudice to the above, the respondent responded to the individual allegations of wrongdoing, discrimination and failure to provide reasonable accommodation, as well as those pertaining to harassment and victimisation.
3.6 The respondent submits that it discharged it obligations pursuant to Section 16 of the Acts to provide reasonable accommodation for the claimant. In this regard the respondent submits that it adopted a proactive approach to ascertain suitable and appropriate measures to accommodate the claimant in her employment.
3.7 The respondent further submits that it took a series of 18 specific actions which were in direct response to dialogue and/or professional advice on the matter of providing appropriate measures and removing specific disadvantages raised by the claimant. In this regard, the respondent submits that these actions were effective in meeting the claimant's needs.
3.8 With regard to the issue of the complaints from parents, the respondent submits that these matters were dealt with in accordance with agreed procedures which are in place between the teacher's union (ASTI) and the management representative body (JMB) for the purpose of addressing complaints made by parents/guardians against a teacher.
3.9 With regard to the issue of the alleged cyberbullying, the respondent submits that the matter was dealt with appropriately by the school principal. The students in question received appropriate sanctions, which included the tendering of an apology to the claimant, which, according to the respondent, was accepted.
3.10 The respondent submits that, with regard to the conducting of an OT assessment, the school engaged the services of an occupational therapist, as was recommended by the report from the occupational health consultant in March 2013. However, due to circumstances beyond the control of the respondent, it transpired that a second assessment had to be carried out by an OT professional with specific qualifications in the area of ergonomics.
3.11 The respondent submits that on foot of the above assessment, the report of which issued in October 2014, a series of twelve individual accommodations were made with regard to physical supports in order to accommodate the claimant's requirements.
3.12 The respondent further submits that the Principal and Chairperson of the Board of Management met with the claimant and her trade union representative in June 2014 to discuss the timetable for the 2014/15 academic year as per the occupational health assessment report from May 2014. The respondent submits that the finalised timetable for 2014/15 was in line with the claimant's expressed preferences and she indicated her satisfaction on the basis that she believed it to be a good fit with her functional ability.
3.13 With regard to the claimant's allegations of harassment on the grounds of disability, the respondent contends that it appears the claimant's submission in this regard relates to the procedure initiated on foot of the complaints received by parents. The respondent submits that this procedure was wholly unrelated to the claimant's disability and/or any issue raised by her in connection with same.
3.14 With regard to the claimant's allegations of intimidation, harassment and discrimination as a result of her submission of the letter of 24 January 2013, the respondent submits that that the claimant failed to provide any substantiated evidence in the course of her submissions to support the allegations been made in this regard.
3.15 In conclusion, the respondent stated that the claimant is considered as a valued member of the teaching staff and the skills/experience she brings to her work are fully appreciated. The respondent further submits that it has at all material times been anxious to support and accommodate the claimant into far as is reasonably practicable.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue before me for decision is, whether or not, the respondent discriminated against the claimant, in relation to her conditions of employment on grounds of disability in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, when she was diagnosed with Multiple Sclerosis and whether she was provided with reasonable accommodation and suffered harassment and victimisation. 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 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
This means that the claimant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, the burden of proof passes to the respondent to prove the contrary.
The Labour Court elaborated on the interpretation of Section 85(A) in Melbury v Valpeters (EDA/0917) where it is stated that the section: “places the burden of establishing the primary facts fairly and squarely on the claimant and the language of this provision admits of no exceptions to that evidential rule.”
4.3 Before considering whether or not the claimant established a prima facie case of discrimination, I will first address the preliminary points raised by the respondent with regard to time limits.
4.4 Section 77 (5) (a) of the Acts states that "a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of six months from the date of occurrence of discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence". The respondent drew attention to the fact that in the complaint form, received by the equality Tribunal on 17 June 2013, the claimant identifies the most recent occurrence of discrimination to have taken place on 31 May 2012. The respondent acknowledged that there may have been a typographical error in relation to the aforementioned date. However, notwithstanding this, the respondent submitted that the claimant failed to meet the requirements of Section 77 (5) and her complaint should, as a result, be rejected.
4.5 Having carefully considered all the evidence submitted in relation to this specific issue, I am satisfied that, the complaint includes significant interaction and issues between the claimant and the school principal/BoM in the period January to May 2013, which the complainant considered as incidents of the alleged discriminatory behaviour. The claimant further identified a number of issues which also occurred during that period which are specifically linked to the alleged harassment and victimisation.
Therefore, taking all of the above into consideration, I reject the respondent's submission in relation to the application of Section 77 (5) of the Acts and, consequently, I find that I have jurisdiction to appropriately consider the complaint lodged with the Tribunal in June 2013.
4.6 The second issue raised by the respondent in relation to time limits relates to the submission by the claimant, in August 2015, of additional material pertaining to events in 2014/2015. The respondent submits that the Tribunal is precluded from considering any complaints relating to matters occurring after 17 June 2013 (date of receipt of original complaint by the Equality Tribunal).
4.7 In considering the submissions made by the respondent in this regard, I note the decision of the High Court inCounty Louth Vocational Educational Committee v The Equality Tribunal, (Unreported, High Court, 24 July 2009, McGovern J). In his judgement in this case Judge McGovern stated:
"6.2 I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend the pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an extended period of time. But under the legislation it is clear that the complaints which are made within that expanded period are not time-barred. This is not to say that the complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that will fall to be dealt with in the course of the hearing in any particular case.
6.3 Of course, it is necessary that, insofar as the nature of the key is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."
4.8 it is clear from this judgement that in advancing a claim under the Acts, a complaint is not limited solely to what is contained in the originating form. I do not consider that the new incidents go beyond "the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time". I am also satisfied that the respondent was provided with the opportunity to respond to these new incidents, both by way of written submission and in oral evidence during the hearing. Consequently, I conclude that these new incidents fall within the time limit provisions of section 77 (five) of the Acts.
Burden of Proof:
4.9 Having dealt with the issues pertaining to time limits, I then now considered the matters set out at 4.2 above in relation to burden of proof. In this regard the claimant is required to demonstrate the primary facts from which it can be inferred that the respondent has discriminated against her on the grounds of disability.
4.10 Having carefully considered all the evidence presented by the claimant in her submission and in the oral evidence provided at the hearing, I am not satisfied that the claimant has satisfied the requirements placed on her by Section 85 of the Acts to demonstrate a prima facie case of discrimination.
4.11 In conclusion then, taking all of the above into consideration, I find that the claimant has failed to establish a prima facie case on the grounds of disability with regard to her conditions of employment.
4.12 The claimant's complaint includes the additional elements: failure by the respondent to provide give reasonable accommodation for her disability, as well as harassment and victimisation.
Provision of Reasonable Accommodation:
4.13 With regard to the allegation that the respondent failed to provide reasonable accommodation in relation to her disability, Section 16 (3) of the Employment Equality Acts imposes obligations on employers to provide reasonable accommodation for employees who may have a disability, but who may be fully competent and capable of carrying out their duties on the basis of such accommodation. In its determination in the case of Humphreys v Westwood Fitness Club (EED037) the Labour Court stated, inter alia:
"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 is in full possession of all material facts concerning the employees condition...
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 employees capability including the degree of impairment arising from the disability and its likely duration. Looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable, Section 16 (3) of the Act requires the employer to consider what, if any, treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered.
Finally, such enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate and is allowed to present relevant medical evidence and submissions".
4.14 From the evidence presented during the hearing, I am satisfied that it demonstrates that the respondent met the requirements of Section 16 of the Act by taking the following actions:
a) Availing of independent, professional medical assessment of the claimant's condition and the impact of that on her ability to carry out her duties in a competent manner.
b) Commissioning two independent OT assessment, the second of which gave specific attention to ergonomic factors, and the implementation of a series of actions and/or adjustments arising from those assessments.
c) Application to the Department of Education and Skills (DES) for the provision of additional resources to engage an extra teacher to take on the practical elements of the claimant's timetable. In addition, while awaiting approval of this application, temporary measures were put in place to assist the claimant in the delivery of her practical classes.
d) Engagement with the claimant and her trade union representative in relation to the provision of accommodations and arrangements to take account of her disability.
4.15 Having carefully considered the evidence set out at 4.14 above, I am satisfied that the respondent met its obligation in relation to Section 16 of the Acts.
4.16 However, notwithstanding the finding set out at 4.14 above, it should be noted that there were some time delays with regard to the respondent's efforts to provide reasonable accommodation. It is clear that the claimant considered these delays to represent failure by the respondent to deal with her situation in an appropriately proactive manner. I do not find there to be a basis to the claimant's contentions in this regard and conclude that any such delays were as a result of circumstances which were reasonably beyond the control of the respondent.
I am further of the view that the claimant's own behaviour and reaction in relation to the efforts being made by the respondent resulted in a proactive and collaborative approach being more difficult to achieve.
In this regard I find that the complainant's response to the approval by DES of the additional resources to cover the practical elements of her classwork to have been particularly unhelpful and her reluctance to comply with the conditions of approval stipulated by the Department to have been unreasonable in the circumstances.
4.17 It is clear from the above that the working relationship between the claimant and the respondent is now rather poor. In this context, I am of the view that it may be appropriate and helpful if certain steps were taken to create a more positive, collaborative and productive approach to this situation going forward. Consequently, I respectfully recommend that the parties should agree to partake in regular and focused engagement with the view to considering the claimant's ongoing situation and the implications this may have for the carrying out of her duties.
In order for this initiative to be successful it is imperative that all parties engage with the process in a constructive, proactive manner based on mutual respect and the sharing of a common objective.
Harassment and Victimisation
4.18 The claimant's complaint in this regard is based on her treatment by the respondent in relation to issues pertaining to: cyberbullying, complaints from parents, ECDL examinations and sign-off on SEC Reports. All of these matters were submitted by the claimant as evidence of discrimination by the respondent.
4.19 Having carefully considered all the evidence adduced in relation to these matters I am satisfied that each issue was completely separate and unconnected to the claimant's disability. It is clear from the evidence presented at the hearing that all of these issues initially arose independent of any action or decision of the respondent. Furthermore, it is clear that in the handling of these issues when they arose, the respondent acted in accordance with well established policies and procedures in this regard. This was particularly so in the case of the handling of complaints made against the claimant by two sets of parents.
4.20 Consequently, having carefully considered all of the evidence before me in relation to these issues, I am satisfied that the respondent did not victimise the claimant contrary to section 74 (2) of the Employment Equality Acts or harass the respondent contrary to section 14 (A) (7) (a) (i) of the Acts.
I have investigated the above complaint and make the following decision in accordance with Section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:
· the complainant failed to establish a prima facie case of discrimination in relation to conditions of employment on the disability ground, and
· the complainant failed to establish that the respondent failed to provide reasonable accommodation for her disability ground, and
· the complainant failed to establish a prima facie case of harassment on the disability ground, and
· the complainant failed to establish a prima facie case of victimisation.
9 December 2015