ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001120
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 |
CA-00001505-001 |
16/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 |
CA-00001505-002 |
16/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 |
CA-00001505-003 |
16/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 |
CA-00002787-001 |
22/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 |
CA-00002787-002 |
22/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00002787-003 |
22/02/2016 |
Date of Adjudication Hearing: 30/03/2016
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Complainant’s Submission and Presentation:
There has been an ongoing difficulty with discrimination against me since I suffered a life threatening series of injuries in a RTA in 2005. The matter came to a head in June 2014 when my employer purported to assign me to a clerical low grade job instead of my permanent post as a senior physiotherapist. The stress of this mistreatment rendered me ill and I have been out sick since June 2014.I tried to reach agreement with the employer and was due to file an equality claim when I thought I had resolved the matter in March 2015. With the help of my Solicitor I reached agreement with my employer in March 2015 that I would be reassessed by their Occupational Health Specialist and that I could return to work from sick leave depending on assessment of (the respondent’s) own Occupational Health Specialis.t Despite the positive assessment given on 29 October 2015 passing me fit I was refused return to work and am still on unpaid sick leave. I have a small degree of disability due to a very serious RTA some years ago, and require some degree of reasonable accommodation in returning to work as a physiotherapist. The respondent either for reasons of refusal to consider any accommodation, or on grounds of race as I was born in India have discriminated against me. I will upload the correspondence since March 2015 in support of my claim. As I felt the respondent had acted in good faith I feel it is reasonable to extend time to consider the circumstances and occurrences of the last 12 months. |
This is to deal with the earlier mistreatment and discrimination including improvisation I received due to my disability, which commenced in 2006, and continues to date, but primarily since early 2014,when the respondent tried to force me to volunteer to take a low level clerical post instead of my permanent senior physiotherapist course, and to claim any loss of earnings since June 2014 not awarded under the Employment Equality Act claim. |
I have been victimised by not being given pay for a reasonable period after the agreement reached in March 2015, where it was agreed the respondent would promptly have me reassessed by the Occupational Health Physician and returned to work . I seek an extension of time for my claim as I believed the respondent’s assurances given in March 2015 that they would deal fairly with me and and did not lodge a claim under the Employment Equality Act as a result. As a result of their delay and ultimate refusal to abide by the agreement which should have been fulfilled no later than 1st June 2015 I now claim loss of wages since that date at €2240.00 per fortnight and continuing. |
My employer has not brought me back to work despite the recommendation of their own Occupational Health Expert, in a report dated 29th January 2016 see previous claim CA000015059(1-3) TOGETHER with which this claim should be heard |
I have been victimised for seeking to return to my Physiotherapy Job, I seek payment of my wages while off sick as an alternative to my Payment of Wages Act claim see previous claim CA000015059(1-3) TOGETHER with which this claim should be heard |
My pay has been stopped while I am out sick due to the employers failure to make reasonable accommodation see previous claim CA000015059(1-3) TOGETHER with which this claim should be heard |
Background
The Claimant is a naturalised Irish citizen who was born in India. He commenced work as a senior physiotherapist with the respondent in April 2005. In October 2005 he was involved in a car accident and suffered severe physical injury including traumatic brain injury and was hospitalised for 76 days. Due to his need for rehabilitation and also due to the reluctance of local management to allow him return to work, he was absent from work for one year and ten months.
He had reached a good level of functioning by August 2006. He sought to return then but was referred to the respondent’s Occupational Health Doctor who herself referred him to the National Rehabilitation Hospital. A report on his condition was sought by his line manager, Ms A C and this was sent by Dr McE, Consultant in Rehabilitation Medicine advising a phased return to work. The local manager did not act on this report and a disturbing handwritten post-it note on the file questions whether the report was in fact somehow created by the claimant himself.
By typed report in March 2007 the Consultant confirmed her prior recommendation that the complainant should be gradually reintegrated into case load within an acute hospital setting, and that a further review be carried out in six months time. Despite this, the complainant was not returned to work until after the line manager had sought two further reports, one from the respondent’s Occupational Health Doctor and a second from a Consultant Clinical Psychologist, neither of whom would be at the same level of expertise as Dr McE. Both concluded that he could return on a phased basis.
During the period from March 2007 until his actual return to work the complainant experienced difficulties in obtaining renewal of his visa and feels that no effort was made to assist him by local management in this regard. During this period local management sought to extend his probation. He returned to work on a phased basis in August 2007. After a period of leave he commenced working on full duties on 26 November 2007. His work was split over two hospitals, Hospital S and Hospital C. The duty in the latter hospital was particularly suitable as he was carrying out hand and arm physiotherapy which allowed him to be seated. However, in September 2008 he was removed from duty in Hospital C by the line manager there. He was then confined to duties in Hospital S where he worked to the best of his abilities but was conscious of impatience and lack of regard from management. Following further meetings with Ms A C a report was received from Ms A S in January 2009 but again management were not satisfied and he was referred to the respondent’s Occupational Health Doctor and also to the Speech and Language Department which he found insulting.
On 4th Nov 2010 Ms A C removed him from is physiotherapy duties and confined him to desk duty which continued to the date when an attempt was made to demote him to an entry level clerical position in 2014. He effectively sat at a desk in Hospital S but no duties were assigned to him. He undertook an MSc at his own expense. He continued to ask to be put back to clinical duties. Unknown to him his Line Manager when asked in 2012 stated she would not even accept him for cleaning duties in the Physiotherapy Department. The respondent resumed the strategy of referring him to Occupational Health for assessment for a full duty physiotherapy role, even though he was being denied the clinical practice to allow him any possible chance of passing such an assessment. One such assessment in June 2012 stated that there ‘has been no change in his capacity to perform at a level expected by and clearly outlined by his manager Ms A C’.
In January 2013 he was again examined by Dr McE who concluded that he was not currently capable of returning to full independent duties as a Senior Physiotherapist. She was not asked to assess his suitability for more limited duty such as hand and arm physiotherapy and she pointed out the effect on her assessment of his absence from clinical practice. Her report was not considered by the Occupational Health Consultant until August.
The respondent attempted to force the complainant to accept his demotion to entry level Clerical Officer. The stress caused made him ill and he went on sick leave. While on sick leave he was refused his full sick pay as he refused to sign a referral form which incorrectly described his job as Clerical Officer.
At a meeting in March 2015 the complainant was represented by his solicitor who pointed out that the meeting was seen as an alternative to a claim to the Equality Tribunal and if there was no satisfactory outcome such a referral would be made. Agreement was reached as follows;
Firstly, it was agreed that the Occupational Health Assessment (OHA) of the complainant was to be requested by HR to cover both his current absence with stress and also to assess his ability to carry out Physiotherapy duties solely related to hand and arm physiotherapy.
Secondly, the complainant felt strongly that he was capable of carrying out clinical practice as a Physiotherapist confined to hand an arm and it was agreed that the respondent would consider this. However, a caveat was added to the effect that if the OHA was positive, there would still need to be a further period of assessment while the complainant was actually carrying out the work.
Thirdly, if the OHA was negative, the claimant’s representative made the point that he was too highly qualified to be placed on a grade 3 entry grade and should be offered a higher position in Administration.
The form for the assessment which was signed by the complainant contained instructions in relation to the assessment for other duties including hand and arm physiotherapy. No such assessment has been mentioned in any report to date. The report which issued in October 2015, was from a locum physician, and said the complainant ‘is medically fit for the stated post’. Typically, the respondent did not accept this conclusion and insisted on a further report.
The history of management’s approach to this case has been to focus on what he cannot do rather than what he can do. No proper attempt was made to assess him for hand and limb physiotherapy in Hospital C. The line manager, Ms A C removed him from active duties in 2010 on the grounds of concerns and complaints, but no disciplinary actions were ever taken against him on foot of these. The respondent is setting the complainant up for dismissal by refusing reasonable accommodation and while he has been prevented from practising his professional skills for five and a half years.
In failing to abide by the agreement reached in March 2015 and in denying the complainant sick pay consequent to his representatives raising the question of discrimination, it is clear that the respondent victimised the complainant.
In relation to the Industrial Relations Act the claimant seeks a recommendation relating to any matters which may be deemed to be out of time or otherwise outside the jurisdiction of the Employment Equality Acts.
Respondent’s Submission and Presentation:
Preliminary issues.
It is submitted that a considerable number of the incidents relied upon in the claim form are outside of the time limits.
The complainant has lodged a complaint under Section 13 of the Industrial Relations Act 1946 for loss of earnings from June 2014, not awarded under the Employment Equality Act. There is no provision under that Act to issue such a claim.
The complainant alleges victimisation by not being paid for a reasonable period after the agreement reached in March 2015 and is requesting payment from 1 June 2015. It is submitted that all matters prior to June 2015 are statute barred and no reasonable cause has been presented to justify an extension.
Substantive Case.
The respondent has supported the complainant in his recovery on both professional and personal levels. The respondent has at all times taken the guidance of and acted on the advice of its Occupational Health Physicians and has liaised with the complainant to keep itself informed of all the relevant facts. The respondent has considered reasonable accommodation, initially in providing an alternative Physiotherapy role, and when he was deemed unfit for that role, an alternative role as a Clerical Officer. The respondent continues to liaise with the complainant and his representatives to seek solutions.
On the recommendation of a consultant from the National Rehabilitation Centre, the respondent sought to gradually integrate the complainant into an acute hospital setting, which was not the setting for which he was originally engaged. Ms A C worked with colleagues to find a suitable position and identified a role in a particular hospital. However, OH were not of the opinion that the position would provide appropriate rehabilitation/re-integration. A number of meetings were held with OH including enlisting the assistance of Ms ED a consultant in Ergonomic and Disability Management at a cost of €3,000..
In relation to the question of a visa, Mr MG, General Manager, spent considerable time liaising with the Gardai. In addition the Area Recruitment Manager wrote to the Dept of Justice requesting assistance and the visa was subsequently granted. The complainant subsequently wrote to Ms A C thanking her for her support in this regard.
The complainant attended Hospital S on a part time basis for 6 – 12 weeks gradually working towards a full time return. The plan included the reallocation of staff, and request for additional resources. The plan also included monitoring arrangements and further medical assessments. The respondent also funded two further assessments on the recommendation of Ms ED at a cost of €2,500. Ms ED’s report stated that while he had made remarkable progress the complainant was unlikely to improve further and that accommodation would be required in the long term and recommended as follows;
The complainant was capable of returning to work as a physiotherapist but not alone in the position for which he was originally engaged.
The complainant should be placed in a department with other therapists to help address the clinical practice and CPD issues identified during the return to work programme
To ensure his own health and safety and that of his patients the complainant needed to acknowledge and fully accept his limitation and seek assistance and support as needed.
The complainant was assigned to two part time positions in Hospital C and Hospital S. The manager in Hospital C began to have concerns and sent a letter to Ms A C detailing issues relating to the complainant’s practice in areas of communication, clinical assessment, documentation and use of evidence based practice. She sought a further evaluation of his competence and one such was carried out by Ms A S.
Ms A C held regular meetings with the complainant between February 2009 and November 2010 wherein concerns were raised over his caseload, clinical practice and accepting direction from his manager. During this time he continued to be engaged in Hospital S as a Senior Physiotherapist dealing with upper limbs only. Arising from an incident in November 2010 Ms AC met again with the complainant and pointed to the risk to the health and safety of both the complainant and of his clients. The complainant was requested to refrain from clinical duties. Ms AC advised the General Manager of 18 complaints which she had investigated in relation to the complainant. In addition, she pointed out that the complainant’s caseload was 3 to 4 clients per day as opposed to 15 clients per day that his peers were seeing. Ms AC also advised that she could no longer stand over his clinical practice and considered him a significant risk to the organisation and specific mention was made of his unpredictable behaviour. A further assessment with the OHA took place in June 2012 which resulted in a suggestion that the complainant be offered retirement on grounds of ill health.
Another referral to the National Rehabilitation Centre resulted in a report from Dr McE stating ‘in my opinion (the complainant) is not likely to be fit for the role of a physiotherapist and ….that the extensive rehabilitation process has been unsuccessful. In my opinion, (the complainant) has been proactive in trying to manage his condition to the best of his ability but due to the extensive nature of his injuries this has been unsuccessful’.
The complainant was paid as a Senior Physiotherapist between November 2010 and June 2014 even though he was not carrying out this role.
The respondent then sought to find alternative roles including the clerical position. While the complainant initially accepted the role under protest he subsequently went on sick leave in June 2014. Following the failure of the complainant to attend OHA as instructed he was removed from the sick pay scheme. The complainant’s solicitors wrote in October indicating for the first time that he had not signed the referral form because of the details on the form. The respondent agreed to amend the form. Following a series of communications, a meeting took place in March 2015 and agreement was reached regarding referral to the OHD. The complainant was restored to half pay in accordance with the sick pay scheme.
The OHA was carried out by a locum who stated that the complainant was fit for the stated post. Subsequently, the locum stated that he was fit for clerical duties and deferred a decision on a physiotherapy role pending an onsite assessment with work related tasks.
In December 2015 the respondent wrote to the complainant suggesting that he commence a trial period in a clerical role during which the onsite assessment could be progressed. The complainant went out sick on the morning he was due to commence the trial period.
The complainant attended OHD for review on 27 Jan 2016. Dr S recommended retraining and a 4 week trial in the position of physiotherapist. Ms AC suggested that the trial period would need to be supported and monitored by a physiotherapy manager, senior staff and a clinical tutor. A meeting was scheduled for 31 March 2016 to discuss the options.
It is accepted that the Claimant suffered from a disability within the meaning of the Acts. The respondent has at all times attempted to accommodate the complainant and is currently seeking the appropriate place to accommodate him for the onsite assessment. The respondent would highlight Council Directive 2000/78 which states that the duty of an employer to provide reasonable accommodation ‘does not require the recruitment, promotion, maintenance in employment, or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned’. S.16(1) and (3) of the Acts confirm that there is no obligation on an employer to train or retain an employee who even with the provision of reasonable accommodation is not able to perform all of the duties of the job concerned. It is also well established that there is no righto an alternative position as a form of reasonable accommodation. Section (16) also provides a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant was not fully capable of performing the duties for which he was employed.
It is clear that the respondent at all times considered the factual positions concerning the complainant’s capability together with all medical evidence available to it and considered what special treatment or facilities may have been available to assist the employee. It is submitted that the respondent has, and continues to complete an exhaustive exercise in considering all possible forms of appropriate measures for the complainant.
In relation to the alleged failure to pay wages and victimisation, notwithstanding the contention that any matters prior to June 2015 are out of time, the respondent submits that it has at all times paid the complainant in accordance with its policies and procedures. The complainant alleges that he was victimised by not being given pay for a reasonable period after the agreement in March 2015. He does not allege that he was victimised for any of the reasons provided for under Section 74(2) and as such has not established a prima facia case of discrimination on the grounds of victimisation.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions in section 6 of the Act
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.
Issues for Decision:
Whether the respondent discriminated against the complainant on the disability grounds by failing to provide reasonable accommodation;
Whether the respondent discriminated against the complainant on the race grounds;
Whether the conduct of the respondent constituted victimisation;
Whether the respondent was in breach of the Payment of Wages Act 1991;
Whether a recommendation can be made under the Industrial Relations Acts and, if so, what that recommendation should be.
Legislation involved and requirements of legislation:
Time Limits
Section 77(5) of the Acts prescribes that a claim for redress for discrimination or victimisation must be initiated within six months of the most recent occurrence of the alleged act of discrimination or victimisation. In situations of alleged continuing discrimination over a period of time, section 77(6A) of the Acts allows for the referral of such discrimination provided that the claim is submitted within 6 months of the point in which the discrimination ended.
Reasonable Accommodation
Section 16(1) of the Employment Equality Acts recognises the fact that there is no legal obligation of an employer to retain an employee who even with the provision of reasonable accommodation is not able to perform the essential functions of their jobs. However, where reasonable accommodation would enable to do their fully duties, any purported dismissal would be considered unlawful. Section 16(1) can provide a full defence to a claim of discriminatory dismissal or to less favourable treatment given that an employer is entitled to have capable and competent employees who are able to perform the roles attached to the position. Any reliance on section 16(1) is contingent on the obligations of reasonable accommodation being adhered to in full by the employer prior to the termination of employment. No assumptions about the ability of the employee to continue in employment due to their disability in the absence of any medical or occupational assessment should be made.
Section 16(3) of the Acts imposes the obligation of reasonable accommodation on employers for employees. It requires employers to remove barriers and make adjustments to the work environment or structure, in order that employees with a disability are placed in a similar position to their counterparts without a disability. It requires employers to take a proactive approach to locating suitable measures with which an individual with a disability can be accommodated in the workplace. In this regard it requires an individualised approach by employers. It allows adjustments to be made in order that such employees may be deemed capable of performing the essential tasks of a particular job, but if the individual cannot do so with the aid of reasonable adjustments or if the adjustments are simply too expensive for the employer, then the requirement is not necessary or required. It involves the employee with the disability in an interactive dialogue with the employer to search for the right kind of accommodation needed in the overall circumstances of the case.
The Court in the decision of Humphreys v. Westwood Fitness Club [2004] E.L.R. 296 stated;
“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 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 termsthis 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.
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, special 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 an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”
In Nano Nagle School v Daly [2015] IEHC 785 the High Court stated that definition of “appropriate measures (reasonable accommodation) in the Employment Equality Acts included the “adaptation of… patterns of working time…[and] distribution of tasks” and that, as a consequence, a disabled employee is to be regarded as fully competent to undertake and fully capable of undertaking the duties of a job if the disabled employee would be so competent and capable on the distribution of tasks associated with that job being adapted by the employer. The Court further stated that the distribution of tasks must also include the elimination of tasks.
Victimisation
Victimisation is defined in broad terms under the Employment Equality Acts 1998-2011. Section 74(2) provides:
‘(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.’
Section 74(2) of the Acts sets out the acts which are protected from adverse treatment on the part of the employer, and the actions which an employee must have taken/indicated an intention to take, from which the reactionary behaviour of the employer emerged. It is clear, therefore, that section 74(2) is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the employee which is caused by him or her having undertaken a protected act of a type referred to in section 74
The key elements of victimisation provided for in section 74(2) of the Acts therefore are :
The employee had taken action of a type referred to at section 74(2) of the Acts (a protected act),
The employee was subjected to adverse treatment by the Respondent, and,
The adverse treatment was in reaction to the protected action having been taken by the employee
Payment of Wages
The Payment of Wages Act 1991 prohibits certain deductions from wages under section 5 which states;—
(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
(c) in the case of a deduction, the employee has given his prior consent in writing to it. ….
Decision:
Preliminary Issues
The conduct which the complainant alleges is discriminatory relates to the refusal of the respondent to make arrangements for the complainant to return to work as a senior physiotherapist within an appropriate period of time. This refusal is continuous in nature and section 77(6A) of the Acts allows for the referral of such discrimination provided that the claim is submitted within 6 months of the point in which the discrimination ended. As the claimant at this point in time has not been allowed to return as a senior physiotherapist the alleged discrimination has not ended and therefore the referral is in time.
The referral of the issues under the Industrial Relations Act required the agreement of the respondent in order to be adjudicated upon and the respondent indicated agreement. Therefore, this issue will be dealt with in the substantive finding.
Substantive issues
Discrimination on grounds of race
During the hearing the complainant stated that he would not be pursuing this allegation.
Reasonable Accommodation.
There is no dispute that the complainant suffered from a disability.
The employer is required to make reasonable accommodation in such cases. The questions that arise therefore is whether the accommodation provided was appropriate to the individual circumstances, whether the respondent conducted appropriate assessments to determine the impact of the disability on the ability of the complainant to carry out his substantive role, including reduction of tasks, with such accommodation, and whether the respondent consulted appropriately with the complainant in this regard.
The complainant contends that he is capable of carrying out the role of senior physiotherapist, initially on a modified basis to deal with hand and arm, but in the longer term the full range of duties. It is clear from the medical evidence presented that this view is not shared at present by the medical experts. Over a prolonged period of time the respondent referred the complainant to a number of different medical experts. Given the nature of the employment and in light of the risks associated with malpractice it is necessary for the respondent to be fully satisfied that the respondent can perform the functions of the post without such risks.
Initially, the opinions of medical experts were sought and subsequently, arising from the initial assessments of these experts, the complainant was given the opportunity to demonstrate his competence. It is clear from the reports of the line manger that this trial period was not successful. and that there were considerable problems with the complainant’s work. An additional problem related to the ability of the complainant to only deal with a small number of cases compared to his colleagues. I therefore conclude that the respondent consulted with the complainant and made no assumptions as to the complainant’s abilities but rather relied on medical assessment and trial period before taking any action. I note the respondent’s continued efforts in this regard and that a further trial period, fully supported and following retraining, is in hand. The efforts of the line manager Ms AC are commendable in this regard.
The offer of alternative employment in an administrative function is further evidence of the respondent making reasonable accommodation. The respondent’s pension scheme makes specific provision for permanent disability and is available should neither of the above options prove successful. I therefore, conclude that the respondent has fulfilled the requirement to provide reasonable accommodation to the complainant.
Victimisation
An employee alleging victimisation is required to demonstrate the primary facts from which it can be inferred that the respondent has victimised the employee and that these facts are of a sufficient weight to raise a presumption of discrimination in order for them to meet the burden of proof required of them and for the burden of proof to shift to the employer. In this instance the complainant contends that in failing to abide by the agreement reached in March 2015 and in denying the complainant sick pay consequent to his representatives raising the question of discrimination, that the respondent victimised the complainant. The respondent continues to attempt to implement the spirit of the agreement of March 2015. The complainant is subject to the rules of the Public Sector Sick Pay scheme operating in the respondent’s area and has been treated in the same way as any other person would be under the terms of that scheme. I therefore conclude that he was not victimised within the meaning of the Act.
Payment of Wages
The complaint in relation to the payment of wages also relates to non payment while out sick. The sick pay scheme operating in the sector is a term of employment of the complainant and therefore there is no cause under this Act.
Industrial Relations Issues
The complainant has received his full entitlements under the respondent’s sick pay scheme and it would not be appropriate to recommend any enhancement to these entitlements in an individual case, as they apply throughout the public service. Therefore I make no recommendation under this Act.
Decision:
I have investigated the above complainants 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 has failed to establish a prima facie case of discrimination in relation to the disability ground, and
the complainant has failed to establish a prima facie case of victimisation
The complainant has failed to establish any case under the Payment of Wages Act.
Dated: 20th July 2016