ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008926
A Quality Analyst
A Pharmaceutical Company
Rosemary Mallon B.L. instructed by A&L Goodbody Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 19/01/2018
Workplace Relations Commission Adjudication Officer: Orla Jones
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This dispute involves a claim by a complainant that he was discriminated against by the respondent on the grounds of disability, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015. There is also a claim of failure to provide the complainant with Equal Pay.
The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Workplace Relations Commission on the 1st of June 2017. In accordance with powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 19th of January, 2018.
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.
Summary of Complainant’s Case:
The complainant submits that
he has been employed by the respondent since November 2002 firstly as a Process Technician and later as a Quality Analyst,
he was on Sick leave from 25th of April, 2016 to 17th of October , 2016,
he received full pay during his sick leave for a period of 17 weeks up to 29th of August 2016 and after 17 weeks on full pay his pay was reduced to 66% of his normal pay,
he returned to work on 17th of October 2016 on a phased basis on a 4 hour day for which he continued to be paid at 66% of his salary,
he submits that the reduction in his pay amounts to discrimination on grounds of disability,
he submits that others who were on sick leave were treated more favourable and did not have their pay reduced,
he submits that he had a previous period pf sick leave in 2015 where he was absent for 11 weeks and that he continued to be paid at 100% of his salary during the previous year’s sick leave period.
Summary of Respondent’s Case:
The respondent submits that
the complainant has been employed by the respondent since November 2002 firstly as a Process Technician and later as a Quality Analyst and continues to be employed by them,
the complainant was on Sick leave from 25th of April, 2016 to 17th of October , 2016 during which he received 17 weeks of full salary while on sick leave and after which his salary was reduced to 66% of his normal pay,
the respondent operates a generous sick pay scheme in which employees are entitled to 12 weeks full sick pay in a rolling 12 month period,
the complainant received full pay for more than the 12 weeks allowed as he received full pay for 17 weeks of sick leave,
the complainant’s pay was reduced to 66% after 17 weeks on sick leave,
the complainant continued to be paid at 66% of his salary after he returned to work on a phased basis during which he worked a 4 hour day,
the complainant’s pay was restored to 100% once he increased his working day to 66% of his normal hours,
the complainant received full pay for his entire period of sick leave in 2015 as he was only absent for 11 weeks and had not reached the yearly maximum of 12 weeks sick pay,
there has been no less favourable treatment of the complainant.
Findings and Conclusions:
Preliminary Issue in respect of the Equal Pay claim
The complaint was submitted to the WRC on the 1st of June 2017. The complaint form indicated that the claim being made was one of Equal Pay on grounds of disability. It was clear from the narrative of the form that the complainant was claiming that his pay had been reduced to 66% of his normal salary during and following a period of sick leave and was later returned to 100% of his salary. There is no indication that the complainant was on a different salary scale or pay level than anyone else with a different disability or with no disability. It appears that the claim is actually a claim of discriminatory treatment and not an Equal Pay claim. At the hearing of the claim I gave both parties an opportunity to make arguments on this issue. The complainant who was unrepresented stated that he was treated differently to others while on sick leave due to a disability and that he was also treated less favourably in relation to a reduction in pay during his sick leave and following his return to work on reduced hours. The respondent argued that the claim form submitted by the complainant stated that it was an Equal Pay claim and that the respondent was only on notice of an Equal Pay claim and had not been prepared to answer a claim of discriminatory treatment.
In considering the fact that the complainant had ticked the Equal Pay box on the complaint form despite the fact that the narrative of the form clearly outlined allegations of discriminatory treatment during and following sick leave I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan IEHC 370 . In that case McGovern J. held that it was permissible to amend a claim set out in form EE.1 where ‘the general nature of the complaint (in this case discrimination on grounds of sexual orientation) remains the same.’ I note that McGovern, J. also stated in this decision that this can only be done so long as the general nature of the complaint remains the same. He went on to say that "what is in issue here is the furnishing of further and better particulars" and "the respondent....must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.".
In the present case the complainant had ticked Equal Pay on grounds of disability and had failed to select discriminatory treatment despite the fact that the narrative of the form contained details of an allegation of discriminatory treatment again on the ground of disability. I am satisfied that the narrative of the form stated that the claim related to a reduction in the complainant’s pay which was applied while he was out on sick leave and following his return to work on reduced hours. It is thus clear that the complainant who was unrepresented filled out the form incorrectly as regards ticking the ‘Equal Pay’ box.
I am also satisfied that the respondent was on notice of the allegation of discriminatory treatment on grounds of disability from the initiation of the complaint, given that it was set out in the narrative of the complaint form. In addition, I note that the respondent’s submission dealt with the matters outlined in the narrative of the complaint form. I am thus satisfied that the respondent has been on notice of the detail of the claim on the same ground and is in no way prejudiced by the complainant pursuing a claim of discriminatory treatment despite the fact that the box was not ticked in the complaint form.
Having considered the arguments made I advised the parties that I was proceeding with the hearing of the claim on the basis outlined in the narrative of the form which alleges discriminatory treatment on grounds of disability in respect of a temporary reduction applied to the complainant’s pay during and following his return from sick leave and that I am satisfied that it is not an Equal Pay claim. I proceeded with the hearing on this basis.
Preliminary Issue Time Limits
The respondent submits that the complaint is out of time as it was not submitted within six months of the last date of alleged discrimination. The complaint was submitted to the WRC on the 1st of June 2017. The respondent in this case submits that in order for the complaint to be in time the last alleged date of discrimination must have taken place during the period from 2nd of December, 2016 to 1 June 2017.
Section 77(5) of the Acts provides as follows:
“(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.
The respondent advised the hearing that the complainant’s salary was reduced in accordance with the respondent’s sick pay policy and that this reduction took place from the 29th of August 2016 as the complainant had at this point been absent on sick leave for a period of 17 weeks and had exceeded the allowable 12 weeks of full pay within a rolling 12 month period which is provided by the respondent to those on sick leave. The respondent told the hearing that the complainant had been on sick leave for a total of 17 weeks during the relevant period and that he had been in receipt of 100 % of his pay for these 17 weeks.
The respondent told the hearing that the complainant was advised of this fact by letter dated 17th of August 2016 while out on sick leave, that his pay was being reduced to 66% of his salary on the 29th of August 2016 as he would at this stage have exceeded the respondent’s allowance of 12 weeks on full pay which was permitted in accordance with the respondent’s sick pay policy. The respondent advised the hearing that it had been more than generous with the complainant by granting him 17 weeks on full pay in that 12 months period which was in excess of that provided under its sick pay policy.
The complainant advised the hearing that he returned to work on a phased basis on 17th of October 2016 at which time he reduced his hours to 4 hours (out of a 12 hour shift) per day to facilitate his phased return to work. The complainant told the hearing that his salary continued to be paid at 66% after he returned to work on a 4 hour day and he argued that he should have been returned to 100% pay upon returning to work.
The respondent advised the hearing that this was in accordance with its sick leave policy and stated that the complainant continued to be paid at a rate of 66% of his salary as he was only working a 4 hour day (i.e. 33% of his normal working hours). The respondent told the hearing that the complainant raised this issue with his line manager following his return to work and it was agreed between the complainant and his line manager at a meeting in October 2016 that the complainant’s salary would return to 100% when his daily hours returned or increased to 66% or more of his normal working hours. The respondent advised the hearing that the complainant was working a day shift pattern having been facilitated with this on his return from a previous period of illness in May 2015 during which he was on sick leave for 11 weeks and for which he received 100% of his salary for the duration of his sick leave as he did not reach the maximum of 12 sick leave during that period/year.
The meeting which took place between the complainant and his line manager in October 2016 also discussed the fact that the complainant had received an overpayment in respect of his shift allowance while out on sick leave and that this overpayment would have to be recouped by the respondent over time on a phased basis. The respondent told the hearing that the complainant’s attendance at work increased to 9 hours per day (75% of normal hours) in the week commencing the 16th of January 2017 and that the complainant’s salary was then restored to 100% as his hours had increased to more than 66% of normal hours.
The complainant told the hearing that the last date of discrimination should be taken to be each date on which he was paid at 66% of his salary and he stated that this occurred on the 23rd of November, 2016 on the 23rd of December 2016 and again on the 23rd of January 2017.
The respondent told the hearing that the last date of alleged discrimination should be taken to be the date on which the decision was made to reduce the complainant’s salary. The respondent told the hearing that this was communicated to the complainant on 17th of August 2016 and that this letter stated that the reduction to 66% was effective from the 29th of August 2016.
The complainant in response to this stated that he had appealed the respondent’s decision to reduce his salary and stated that the outcome of this appeal was only communicated to him on the 2nd of February, 2017. The respondent submits that the decision was made on the 17th of August 2016 and the results of this came into effect on the 29th of August 2016 continuing until such a time as the complainant returned to work for more than 66% of his normal hours.
The respondent advised the hearing that the complainant had met with his line manager to discuss the issue of his reduction in pay in October 2016 and that the minutes of this meeting and its outcomes were communicated to the complainant by email dated 3 November 2016 wherein it was reiterated that the complainant would continue to be paid at 66% of his salary until he increased his working day to more than 66 % of his normal hours at which point his salary would increase to 100%. The complainant then emailed the respondent on 15 November 2016 asking that they defer the reduction in his pay until it could be discussed further. The complainant in this email referred to the fact that he was the principle earner in his house and that Christmas was coming and he had a lot of financial commitments. The respondent in reply to this on the 23 November acknowledged that it did not want the complainant and his family to experience any hardship with Christmas approaching and agreed to pay the complainant 100% of his salary for November December and January and then to recoup the pay differential between the 66% salary which he should be paid for that period and the 100% pay proposed, on a phased basis to be agreed between the parties to commence in February 2017.
The complainant accepted this offer but stated that he was going to appeal the company decision to reduce his pay. The respondent advised the complainant that it had made a generous offer and also stated that he could submit any grievance through its Open Door Policy. The complainant chose not to utilise the Open Door Policy and the reason he gave for not using this policy was that he had used it the previous year and felt they had ‘made a laugh’ of him as those involved ‘were answerable to nobody but themselves’.
The complainant instead contacted the company Ombudsman in America Ms. D. The reply from Ms. D dated 2nd of February 2017 reiterates the respondent’s position in respect of the application of the sick pay policy with respect to reducing his salary after 12 weeks sick leave on full pay and its continuation on 66% of pay until he reached more than 66% working hours. This email also advised the complainant that the company has a formal grievance procedure and advised the complainant that he can submit a grievance under the company Open Door Policy.
The emails from Ms. D also make reference to the money owed by the complainant to the respondent due to an overpayment of a shift allowance which he had received while on sick leave and to the fact that the complainant has not engaged in respect of the suggested repayment schedule agreed with his line manager back in October 2016.
The email from Ms. D refers to a summary of their discussions and explains why the respondent had reduced the complainant’s pay while he was on sick leave and which continued on his return to work on a four hour day phased basis. There is no indication that Ms. D carried out a full reconsideration of the matter or of the decision made by the respondent in August 2016 and her email of the 2nd of February 2017 simply explains and reiterates the reasoning behind the respondent’s earlier decision.
It is the response from the ombudsman dated 2nd of February 2017 which the complainant is seeking to rely on to ground his claim that the last date of discrimination is the 2nd of February, 2017.
In deciding whether or not the last date of discrimination should be taken to be the date on which the respondent decided to apply the reduction to the complainant’s sick pay and to maintain it following his return to work on a four hour day or the date on which he received an email reiterating this decision from the company Ombudsman Ms. D, I am guided by the decision of the UK Court of Appeal in Cast Vs Croydon College UK Court of Appeal in which it was found that
“a decision may be an act of discrimination whether or not it is made on the same facts as before, providing it results from a full consideration of the matter and is not merely a reference back to a previous decision”
In the present case the decision to reduce the complainant’s salary to 66% following his exahaustion of the respondent’s yearly 12 week period for payment of 100 % of sick pay was made by the respondent prior to the 17th of August 2016 and implemented on the 29th of August 2016 and continued after the complainant returned to work on a four hour day basis.
It is thus clear from the totality of the evidence adduced that the referral of the complaint to Ms. D company Ombudsman was not a full reconsideration of the respondent’s decision to reduce the complainants salary to 66% after he had exceeded his sick pay quota of 12 weeks full pay in that year and it is also clear that a referral to Ms. D did not have the potential to change the outcome of the earlier decision of the respondent. I am thus satisfied that the final email from Ms. D was merely a reference back to a previous decision and that it could not have had the effect of altering the original decision to reduce the complainants pay in line with the respondent’s sick leave policy.
Accordingly I am satisfied that the last date of discrimination in the present case is the date on which the complainant was notified of the decision to reduce his salary in accordance with its sick pay policy i.e. the 17th of August 2016 or even if taken at its height the date on which the complainant raised the issue of his continued reduction in salary following his return to work at the meeting in October 2016 the results/outcomes of which were communicated to him by email dated 3rd of November, 2016. Thus, the last date of discrimination even if taken at its height is the 3rd of November 2016 and the complaint was submitted on the 1st of June 2017. As the claim was made more than six months outside of the last date of alleged discrimination, I find that it is out of time in accordance with section 77 (5) of the Employment Equality Acts.
Section 41 of the Workplace Relations Act 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015, I issue the following decision.
(i) I find that the present complaint is out of time in accordance with section 77(5) of the Employment Equality Acts 1998-2015.
Dated: 20th April, 2018
Workplace Relations Commission Adjudication Officer: Orla Jones