EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-149
PARTIES
John McEvoy
(Represented by SIPTU)
-V-
Business Mobile Security Services Ltd t/a Seneca Ltd
(Represented by Arthur Cox & Co, Solicitors)
File reference: EE/2013/305
Date of issue: December 2015
HEADNOTES: Employment Equality Acts Sections 77, 16; Time limits –Discrimination on grounds of disability- Failure to provide reasonable accommodation-victimisation-Indirect Discrimination
1 DISPUTE
1.1 This dispute concerns a claim by Mr McEvoy (Hereafter the claimant) that an arrangement he made with his employer (then CP Omada) in 2007 in relation to part-time working was changed when the company was taken over. He says that the ‘new’ company at first denied knowledge of the agreement and then set about undermining it and that in breaching it on a number of occasions discriminated against him and also failed to continue the ‘reasonable accommodation’ agreed in 2009. He further alleged that he was victimised by the company. This latter claim was withdrawn at the hearing.
1.2 The complaint was the subject of protracted internal review through the company grievance machinery between September 2012 and May 2013 which failed to resolve the matter. When the outcome of the process was communicated to him on May 31st he submitted a claim to the Tribunal on June 14th asserting that the most recent date of discrimination was May 31st 2013.
1.3 In accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Pat Brady, 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 July 8th 2015 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 July 16th 2014.
1.4 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 COMPLAINANTS' SUBMISSION
2.1 The complainant became unwell in 2007 and after several periods of sick leave was accommodated with an agreement in 2009 that he would revert to working two days per week for a total of twenty hours. Whereas the precise days to be worked were not specified as part of the agreement, other than that they would not be consecutive days they tended to be Monday and Friday. This arrangement was confirmed in writing.
2.2 In August 2011 the company was taken over by the current respondent and there were a number of incidents which appeared to the claimant to be in breach of the 2009 agreement, not helped by the fact that the letter outlining it appeared to go missing, but it subsequently reappeared although there was some question as to its authenticity, on which nothing turns.
3 RESPONDENT'S SUBMISSION
3.1 The respondent states the claim is out of time in that while the last complained act of discrimination was described by the complainant as having happened on on May 31st 2013, in fact this was the date on which he was advised of the outcome of an in-company appeal process. The respondent says that the last alleged act of discrimination could only have been on August 31st 2012 and as the claim was submitted on June 14th 2013 it falls outside the time limits. I deal with this as a preliminary issue below.
3.2 The respondent also says that the incidents giving rise to the complainant’s concern were minor issues; one related to a misunderstanding about a return date from holidays and the other a genuine error regarding the claimant’s start day of the week.
3.3 It also states that the company (and the industry in general) was undergoing a process of change in respect of manning levels etc that impacted on the complainant.
3.4 The respondent also says that there was some variation in the claimant’s pattern of work in any event
4 FURTHER SUBMISSIONS
4.1 I requested and received further submissions form both parties on the incidence of the complainant working in excess of the hours envisaged under the ‘reasonable accommodation’ provision.
5 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 I have to decide if the complainant was subjected to indirect discriminatory treatment on the grounds specified. 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.
5.2 I turn first to the preliminary matter; that of the time limits. The respondent opened a number of authorities on the issue of the criteria that might apply in respect of extending the time limits on the basis of ‘reasonable cause’. Only one of those is related on its principles to this case save to the extent that they set out clearly the various explanations for delay that have not been found to fall within ‘reasonable cause’.
5.3 The claimant submitted that the ongoing failure to roster him in the period falling within the time limits constituted ongoing discrimination and in any event made application for an extension in the course of the hearing.
5.4 I reject this former submission. The company could not have rostered the claimant in a period when he was on certified sick leave and the question I propose to address is whether the ongoing processes which ran from September 12th 2012 (when the grievance procedure was invoked) to May 31st 2013 when it concluded could be said to represent ‘reasonable cause’ for the delay.
5.5 The respondent submitted that it could not and that the complainant had the option to enter a complaint at any time even as the matter was being considered in the internal process. It relied inter alia on Murray v Boxmore Plastics Ltd DCE –E2007-053 wherein the Equality Officer found that a grievance procedure was ‘a separate process [which] cannot have the effect of altering the time limits specified in the legislation’. However she went on to observe that prompt activation of the grievance machinery in that case by the complainant) might have brought the submission of the complaint within the six month period and she concluded ‘She [the complainant] did not do so and I am satisfied that the complaint …is out of time.’
5.6 It is, of course the case that a potential complainant could make a claim at any time to the Tribunal pending the crystallisation of a complaint. Put another way, this would involve a form of contingency complaint, just in case a matter was not resolved via internal dispute resolution processes. The implications of this are clear for both the Equality Tribunal and its administration, and even more seriously for workplace dispute resolution at local level.
5.7 It is an established feature of our system of workplace dispute resolution that matters should be resolved at local level wherever possible. Faced with the alternatives of a practise of ‘just in case’ claims with the attendant costs and delays to the work of the Tribunal and its successor or the application of some flexibility in the application of reasonable cause where such processes are unreasonably or unusually delayed it seems preferable to opt for the latter. I also consider the potential damage to the good will necessary for effective dispute resolution by a ‘just in case’ referral to be a factor.
5.8 In the area of civil and commercial disputes there is now substantial judicial support for amicable dispute resolution. The likelihood is that the courts will increasingly exercise powers under their own rules, under the provisions in the Mediation Bill (when enacted) and on foot of the UK jurisprudence to punish parties with adverse costs findings who do not enter meaningfully into mediation. This indicates a strong preference for amicable dispute resolution at the lowest level possible to reduce costs, reduce pressure on the courts and because it is a better way to resolve disputes. Such trends were not obvious in 2007 when the Murray decision was given. It would seem perverse to punish a party who, through no fault of their own (and this is an important factor) is delayed in knowing whether he even has a cause of action because (and this is a critical factor) he was engaged in a local process aimed at resolving the matter. In this case the delay in concluding the internal grievance process (eight months) was unacceptable.
5.9 That said, in respect of the substantive claims the onus falls on the complainant under Section 85 A (1) to establish a prima facie case. On the basis of the facts as presented by both parties and the limited number of incidents which gave rise to the alleged breaches I find that there is no prima facie case of discrimination or failure to provide ‘reasonable accommodation’. In relation to the former, his shift arrangements were changed on two occasions (and as noted above mainly as a result of minor misunderstandings). It was accepted by the claimant that his rostered days were not required to be Monday and Friday only (and this was never specified in any medical certification). The company noted that the complainant often consented to variation in his shifts, routes etc.
5.10 I do not find this to represent the withdrawal of ‘reasonable accommodation’ as claimed. In respect of the hours worked in excess of the reasonable accommodation’ threshold in respect of which the parties made supplementary submissions it is clear that there were a number of occasions when this did happen. A number of these were minor (2 and 2.75 hours) a number of others significantly higher. No reasons were offered for these overruns and while there is some evidence of the complainant’s dissatisfaction in the original submission, referred to again in the supplementary submission in respect of a grievance meeting on October 24th 2012 this aspect of the grievance is a rather secondary priority for the complainant who seemed willing to accept time off in lieu for the excess rather than objecting to the hours per se.
5.11 I have no basis for considering these to represent a withdrawal of the ‘treasonable accommodation’ noting the absence of any objection by the complainant and in any event the emphasis he laid, less on the number of hours than on the days on which these were worked. Therefore I conclude that nothing turns on this evidence
5.12 In respect to the complainant’s case that he was required to lift excessive weights the company had no medical basis for treating the complainant any different to this co-workers and while the union submitted that the weights were in some cases unsafe no evidence was offered on this point. The company gave evidence that the move to ‘one man’ runs was now an industry standard and that the claimant had previously undertaken ‘one man’ runs ‘without demur’.
5.13 The complaint of victimisation was withdrawn.
6 DECISION
6.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
· There is, in the circumstances outlined above of a speedy referral by the complainant of a matter to the internal processes, and unacceptable delay in bringing them to a conclusion, and in view of the thrust and direction of judicial, and public policy support for amicable despite resolution grounds for ‘reasonable cause’ to extend the time limits.
· However, I find that there was no discriminatory treatment or withdrawal of ‘reasonable accommodation’ in breach of the act and I dismiss the claims.
____________________
Pat Brady
Equality Officer
December 2015