EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC-E2015-154
PARTIES
Ms A. (represented by Communications Workers Union)
-V-
A Subsidiary Company of An Post (represented by Mr Seamus Clarke, B.L., instructed by the An Post Solicitor)
File Reference: EE/2014/094
Date of Issue: 10th December 2015
Table of Contents
1. Claim.. 3
2. Summary of the Complainant’s Written Submission. 3
3. Summary of the Respondent’s Written Submission. 5
4. Conclusions of the Equality Officer 6
5. Decision. 11
Keywords: disability – reasonable accommodation – conditions of employment.
1. Claim
1.1. The case concerns a claim by Ms A. that the respondent, a wholly owned subsidiary of An Post, discriminated against her on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2011, in terms of conditions of employment and failure to provide reasonable accommodation.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 27 February 2014. A submission was received from the complainant on 20 November 2014. A submission was received from the respondent on 19 February 2015. On 25 November 2015, in accordance with his powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Adjudication Officer/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. 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 on 30 November 2015.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that she has worked for the respondent as a retail support executive since April 2011. In July 2013, she made her line manager aware that she found the tone of a colleague towards her aggressive and of a bullying nature. She stated that she did not wish to make a formal complaint but that the manager should take note of the incident complained of. The complainant also felt isolated within the team, and stated that she had been unhappy at work for some time. In September 2013, another colleague spoke to the complainant in a manner which made her feel intimidated.
2.2. Her line manager then escalated the matter, although the complainant had not made a formal complaint, and spoke to all team members. He told team members that the complainant had made a complaint. This impacted on the complainant’s attempts to resolve matters informally with her colleagues. The complainant and the managing director had to confirm to the team that the complainant had not made a complaint. The complainant’s line manager then breached confidentiality and told the team of the email sent in July.
2.3. Taken together, these events had a severe effect on the complainant’s health and she went on a lengthy sick leave from September 2013 to May 2014. The complainant’s GP diagnosed her as suffering from moderate to moderately severe depression following psychometric testing. The complainant advised the respondent’s Managing Director of her depression diagnosis by email dated 2 October 2013.
2.4. The complainant’s union made a request to the respondent for the complainant to access An Post Occupational Health and Support Services with a view of getting the complainant back to work, but was advised by the respondent that this service was not accessible to workers in An Post subsidiary companies. The union was also engaged on behalf of the complainant to try and resolve the bullying situation at work and her manager’s breach of confidentiality.
2.5. On 3 February 2014, the complainant emailed the respondent to request a copy of the company handbook and to advise the respondent that she wished to raise a grievance. On 27 February 2014, the respondent replied and advised that it was in the process on arranging an independent occupational medical review. A meeting between the parties was eventually agreed to take place after that review. On 14 March, the complainant notified the respondent that she had lodged complaints with the Equality Tribunal and the Rights Commissioner Service. The complainant’s occupational medical review took place at the end of March and recommended that the complainant should be provided with counselling.
2.6. A meeting took place between the complainant, her union representative and the respondent on 11 April 2014, in which the respondent agreed to pay for four counselling sessions (later increased to six at the suggestion of the complainant’s counsellor), a phased approach for return to work, meeting with the Managing Director weekly for the first four weeks and monthly for the following three months, and that the Managing Director would meet with all staff and the retail support team to update them on the complainant’s return to work. The complainant would also get an advance on her wage, as she had been without an income for some time.
2.7. According to the complainant, this plan was only partially implemented. The advance payment of wages did not happen, and she met only three times with the Managing Director in five weeks. She was returned to the same team, which at that point was without a line manager, which raised the complainant’s anxieties that the bullying should reoccur.
2.8. On the other hand, the complainant states that it caused her dismay that she was not returned to the same role as before, as the Managing Director felt she had to negotiate this with the colleague who covered for the complainant during her sick absence. The complainant states that she covered for that colleague during sickness, and no negotiation with her was needed to return the colleague to her role.
2.9. The complainant further states that she was very overloaded with work, due to staffing shortages. In September 2014, the complainant found herself in a situation where in addition to her own role, she covered for one colleague and part of another colleague’s work. Furthermore, both her job and that of her colleague were much busier due to increased work demands. The complainant felt so stressed that by the end of the week, she remained in bed for the entire weekend and did not leave her apartment. She states that these were like some of the symptoms she had suffered when her depression was at its worst. Eventually, the complainant went out on sick leave again on 29 September 2014.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that it did provide reasonable accommodation and financial support to the complainant on her return to work. The respondent outlines the events which led to the complainant’s first sick leave, and upon her return to work, differently. According to the respondent, the Managing Director was left with an impression that all was well between the complainant and her colleagues after the complainant and one female colleague to to her in her office.
3.2. Regarding the circumstances surrounding the complainant’s return to work, it takes issue with the complaints the complainant raised relating to her return to work, like the late payment of the advance wage and other issue. It also states that the complainant regularly met with the Managing Director, and that by their last meeting on 1 July 2014, the complainant assured the Managing Director that all was ok between her and her colleagues, and that there was nothing for the Managing Director to be concerned about.
3.3. The respondent accepts in its submission that the Managing Director was advised by email of 2 October 2013 that the complainant had been diagnosed with depression. It points out, however, that her medical certificates only refer to “work related stress”, and that when she was reviewed by an occupational health expert on behalf of the respondent, she only reported stress and self-limiting anxiety, without mentioning the depression. The respondent also points out that after the complainant had received counselling and returned to work, she was never out sick between May 2014 and her eventual departure in December 2014. The respondent states that when the complainant resigned from her employment with it, she did so to take up another role closer to her home in Co. Meath. From this, the respondent concludes that the accommodation measures put in place were entirely successful.
3.4. The respondent states that it feels it behaved fairly, reasonably and generously to the complainant and that she was reasonably accommodated upon her return to work.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily 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. In the course of her evidence, the complainant clarified that she had only one sick day in September 2014 to receive physiotherapy for her shoulder, and that her work was not increased on her return to work, only that she covered for other’s summer holidays in the usual manner. The complainant did not adduce any evidence for being discriminated against in her terms and conditions of employment. This part of her complaint must therefore fail.
4.5. In terms of the complainant’s complaint of lack of reasonable accommodation being provided by the respondent, I note that from the report which the complainant’s GP wrote and which is very detailed and precise, I am satisfied that the complainant did suffer from depression and thus had a disability within the meaning of the Acts. I am further satisfied that the respondent had knowledge of this fact from 2 October 2013.
4.6. The subsequent information which the respondent received on the complainant’s condition is much less clear, however. The complainant confirmed in her oral evidence that at her request, her GP certified her as unfit for work due to work-related stress rather than depression. Further in relation to the complainant’s depression diagnosis, when I asked her why she declined her doctor’s recommendation for anti-depressant medication, keeping in mind that S. 16 (4) (c) of the Acts exempts treatments which a worker might provide for themselves from an employer’s responsibility to provide reasonable accommodation, the complainant responded that she did not wish to take such medication due to what she perceived as the high level of addictiveness of anti-depressant medications.
4.7. I also asked the complainant whether she had mentioned her depression, even if it had resolved by then, to the occupational health expert who reviewed her on arrangement by the respondent. She replied that she could not remember. While that doctor’s report talks at some length about the difficult situation at work which preceded the complainant’s sick leave and while the doctor recommends counselling (as the complainant’s GP had done), it only lists “self-limiting anxiety” as a possible diagnosis. Of course it is well-established law that a diagnosis of anxiety qualifies as a disability within the meaning of the Acts, and also that the Acts do not contain a de minimis rule for the severity of disabling conditions. However, in this case it seems important also to have regard to the term “self-limiting”. I shared my online research on the medical term “self-limiting” with the parties, i.e. that it is a disease which resolves itself without further medical intervention. The parties accepted this, and the complainant confirmed that the anxiety she felt when communications from work arrived always resolved on its own after a few hours.
4.8. Accordingly, I find that while the respondent was put on notice that the complainant was at one point diagnosed with depression, it only received sick notices for stress, as well as an occupational medical report speaking of stress and a minor form of anxiety afterwards. The subsequent actions of the respondent must be viewed in light of this situation.
4.9. It forms part of the complainant’s case that the respondent was slow and not pro-active enough in accommodating the complainant.
4.10. The complainant was handed the staff handbook of Postbank (which is another wholly owned subsidiary of An Post) when she commenced employment. In that staff handbook, it says in terms of employee assistance services:
Postbank recognise that employee welfare is of utmost importance. In association with independent experts in the area, Postbank offers a confidential service which provides information, advice, support and assistance on matters affecting employees. This service covers both unlimited telephone support and limited face to face counselling.
Further information can be obtained from your team leader/line manager, the Intranet or the HR department.
4.11. I asked Mr D., from the An Post HR department, who had stated several times that he was an HR adviser for the respondent, about the existence of the service, and how an employee in one of An Post’s subsidiary companies would access it, given that staff in those companies did not have access to the regular An Post employee assistance services. Mr D. consistently answered my question by pointing to the fact that an occupational medical assessment had been organised for the complainant. This does not satisfy me that the services described in the staff handbook do in fact exist and are accessible for employees in any meaningful way.
4.12. Ms C., the respondent’s Managing Director, stated in response to a direct question that Ms A.’s long sick leave was the first such situation she encountered in her position and that she was not quite sure how to proceed. She further stated that she hoped from week to week that Ms A. would be able to return to work. I accept her evidence on these points.
4.13. Eventually, it was Ms A.’s union representative who requested an occupational health assessment for Ms A. in December 2013.
4.14. An employer’s obligations towards a worker on long-term sick leave are 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.
4.15. I am satisfied that once Ms C. received the union’s request for the complainant’s assessment, she moved the matter along at a reasonable speed. I accept Ms C.’s evidence for what caused various delays in organising the appointment, and am also mindful that due to the non-existence of employee support structures noted above, Ms C. had to organise the entire process, including the selection of an appropriate occupational health provider, on her own.
4.16. I am further satisfied that the measures taken by Ms C. to facilitate the complainant’s return to work were adequate. The respondent paid for six counselling sessions for the complainant, which the complainant herself described as “helpful” in her evidence. The complainant was facilitated with a phased return to work, that is, she started on a part-time basis which was gradually increased. While Ms C. did not manage to meet personally with the complainant as frequently as had been agreed, it appears to me that the meetings were sufficiently frequent to address any issues which the complainant faced with her colleagues.
4.17. The only aspect of the return-to-work agreement which was not sufficiently implemented was the agreement that the complainant would receive an advance on her wages to enable her to buy a bus ticket. It must be noted in this context that the complainant’s annual salary, at €22,000, is not very large, and that she commuted from Co. Meath to her workplace in Dublin 2. The respondent’s explanation as to why this advance, to the sum of €500, could not have been paid right after the return-to-work agreement was concluded, does not satisfy me, and I find that the complainant found herself in a difficult position as a result.
4.18. To summarise the respondent’s provision of reasonable accommodation to the complainant on her return to work: While I am cognisant of the fact that the respondent, mostly due to Ms C.’s personal efforts and engagement, did provide a good bit of the necessary accommodation, I find that the respondent still fell short in three aspects of the process: It should not have been necessary for the complainant’s union to request the occupational health assessment; the employee support services outlined in the handbook should have been in place in a meaningful way; and the agreed wage advance should have been paid promptly.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did discriminate against Ms A. by falling short of its obligation to provide the complainant with reasonable accommodation for her disability pursuant to S. 16(2) of the Acts.
5.2. In accordance with Section 82 of the Acts, I hereby order that the respondent pay the complainant €2,500 in compensation for the effects of discrimination. This relatively modest award, representing about six weeks’ pay, is in recognition of the fact that the respondent overall showed considerable generosity and good will in dealing with the complainant’s situation.
5.3. While I am conscious that An Post is not a respondent in the within complaint, I nevertheless would like to recommend to An Post as the parent company of the respondent and several other companies, to put an accessible employee assistance service together for staff in subsidiary companies.
______________________
Stephen Bonnlander
Equality Officer
10 December 2015