ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00011024
Dept. Of Employment Affairs and Social Protection
Dept. Of Employment Affairs and Social Protection
(Represented by HR)
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: 8/May/2018
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
In accordance with 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.
The complainant is alleging that he was discriminated against by the respondent on grounds of age in relation to his conditions of employment. He is also making a claim of victimisation.
Summary of Complainant’s Case:
The complainant is in his late 50’s. He is a Higher Executive Officer in the Department of Employment Affairs and Social Protection. The complainant submits that he has a number of medical conditions namely asthma, hiatus hernia, high blood pressure and more recently had a stroke. He submits that he had 2 days casual sickness on 13 and 14 July last. He states that shortly afterwards, he received communication from Peoplepoint that he had taken 8 days casual sick leave over a rolling 24-month period and that he would be penalised by having a day’s pay deducted from his salary and that his pension entitlements would also be affected. The complainant contends that Peoplepoint do not have an appeal facility which flies in the face of the Department’s appeals service provision. He states that in relation to any decisions taken by him and his colleagues in their work, a formal appeals service exists. The complainant asserts that Peoplepoint does not have any provision for the fact that older persons are more likely to have more wrong with them and that, by extension, are more likely to take more sick leave whether on a casual or certified basis. The complainant states that this is in opposition to most large organisation human resource systems which do take cognisance of this fact. The complainant states that whilst he could have gone to his GP and paid €65 to be seen and to get a sick certificate, he felt that it was the principle of the matter was at stake and was not prepared to do so. The complainant states that he feels very aggrieved in the manner in which he was treated. He submits that he has worked hard in his career to date, has been a good attender at work and is currently working in a very busy unit within the Department and always gives his best. He submits that he has been discriminated against on grounds of his age in relation to his conditions of employment. The complainant is also claiming victimisation, in that, there is no appeals mechanism in place.
Summary of Respondent’s Case:
The respondent states that the complainant is a Higher Executive Officer within the Department. It states that all civil servants are subject to the Terms and Conditions of Employment in the Civil Service. The respondent asserts that the rules, regulations and procedures that apply to sick leave and sick pay are determined by the Department of Public Expenditure and Reform. It states that sick leave in the Civil Service is governed by the Public Service Management (Sick Leave) Regulations 2014 (S.I No. 124 of 2014) and Public Service Management (Sick Leave)(Amendment) Regulations 2015 (S.I. No. 384 of 2015). The respondent submits that the Department of Public Expenditure and Reform Circular 16/2012: Self Certified Paid Sick Leave Arrangements which arose from Labour Court Recommendation Number LCR20335 of 19 July 2012 amended the previous arrangements that had applied in relation to access to self-certified paid sick leave. An Office Notice 59/12 of 31 October 2012 alerted staff to the introduction of the revised arrangements.
The Department of Public Expenditure and Reform Circular 12/2015: Arrangements for paid sick leave outlines the arrangements that apply for paid sick leave. Paragraph 3.3 of the Circular provides as follows “Where a civil servant exceeds 7 days’ self-certified sick leave in a rolling 24-month period, the civil servant will be notified that his/her pay will be reduced accordingly and the appropriate sum recouped. Unpaid absences are not pensionable service.” The respondent states that the Department has in the region of 7,000 staff members. The level of absenteeism in the Department is among the highest in the Civil Service. As part of their induction training, all staff are made aware of the rules and regulations regarding sick leave. The respondent submits that when the complainant joined the Department, on the integration of the CWS (Community Welfare Service) to the DSP (Department of Social Protection), Labour Court Recommendation LCR20117 refers, he signed a form of acceptance on 18 October 2011 in which he accepted the terms and conditions for employment as an established civil servant. The respondent asserts that the complainant agreed to be bound by the terms and conditions as set out.
The respondent states that Peoplepoint, the Shared HR and Pensions shared service wrote to the complainant on 23 November 2016 advising him that he had, at that time, a total of 6 days taken in the previous 24-month period. The letter also pointed out to him the impact of exceeding the prescribed limits. The respondent submits that following two further self-certified sick days on 13 and 14 July 2017, Peoplepoint wrote to the complainant on 15 August 2017 advising him that he had exceeded the self-certified limit allowed in a 24-month period and the consequences of his failure to comply with the relevant rules. The respondent states that the sick pay arrangements available to staff of the Department are in line with those available to all public and civil servants. The provisions are applied consistently to all officers of the Department regardless of their age, gender or grade. The respondent states that Section 10 of the Civil Service Code of Standards and Behaviour requires that civil servants attend work as required and not absent themselves from duty without proper authorisation; to comply with the terms of the sick leave regulations; and at all times act in a manner consistent with the proper performance of the functions of their civil service position.
The respondent states that the complainant has access to certified sick leave in respect of any illness absence. His sick leave record is within acceptable levels that would prevent him from being pay impacted. Days regarded as unauthorised days are not reckonable for pension purposes. The respondent states that when the CWS staff integrated into the Department it was on a “no loss, no gain” basis which meant they retained the same pay and leave entitlements as they had in the HSE. The respondent states that subsequently general Civil/Public Service changes adjusted their entitlements in line with general Civil Service norms. The respondent contends that the Agreement on the assimilation of the pay and conditions of former community welfare officer staff addressed the pension contribution issue referenced by the complainant in his complaint.
In conclusion, the respondent states that it is satisfied that it has not discriminated against the complainant on grounds of age nor has it victimised him. It states that he has been afforded the same sick leave entitlements as all other civil and public servants. The respondent states that the complainant was made aware of the position with regard to this entitlement to self-certified leave in advance of overtaking the leave on 14 July 2017. The respondent submits that all civil servants including the complainant are obliged to provide regular and effective service and have a responsibility for managing their own sick leave and in particular adherence to the sick leave regulations.
Findings and Conclusions:
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters where it held that Section 85A: “… provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”
Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…”. Section 6 (2)(f) of the Acts defines the discriminatory ground of age…” that they are of different ages.” The issues for consideration by me are (i) whether or not the respondent discriminated against the complainant on the grounds of age contrary to section 8 of the Acts in relation to his conditions of employment and (ii) whether or not the respondent subjected the complainant to victimisation contrary to section 74 of the Acts. In reaching my decision, I have taken into account all of the evidence, written and oral, submitted by the parties.
Having examined all of the evidence in relation to the complainant’s claim of less favourable treatment on grounds of age in relation to his working conditions, I find that the complainant has not established a prima facie case of discriminatory treatment. In the Circular laid down by the Department of Public Expenditure and Reform No. 12/2015 at point 3.3 regarding Excessive self-certified sick leave it states “where a civil servant exceeds 7 days’ self-certified sick leave in a rolling 24-month period, the civil servant will be notified that his/her pay will be reduced accordingly and the appropriate sum recouped. Unpaid absences are not pensionable service.” I note that the provisions are applied consistently to all officers of the Department regardless of their age, gender or grade. The complainant was notified by Peoplepoint (the Shared HR and Pensions shared service) by letter dated 23 November 2016 advising him that he had, at that time, a total of 6 days taken in the previous 24-month period. The letter also pointed out to him the impact of exceeding the prescribed limits. It was open to the complainant to attend his GP and get a sick certificate but he chose not to do so on a point of principle. Having adduced the totality of the evidence, I find that the complainant has not demonstrated a prima face case of discrimination on grounds of age and therefore his complaint in relation to discriminatory treatment in relation to his conditions of employment fails.
In relation to the claim of victimisation, in order to maintain such a claim within the meaning of the Employment Equality Acts, it is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the adverse treatment complained of. I am satisfied that the lack of an appeal mechanism in relation to employees who exceed the self-certified sick leave provisions does not constitute victimisation for the purposes of section 74(2)(b) of the Acts. Accordingly, I find that the facts as presented by the complainant do not come within the ambit of a protected act within the meaning of section 74(2) of the Acts and consequently, the claim of victimisation cannot succeed.
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 Schedule 82 of the Act.
I find that :
(i) The complainant has failed to establish a prima facie case of discrimination on the grounds of age contrary to section 8 of the Acts in relation to his conditions of employment;
(ii) The complainant has failed to establish a prima facie case of victimisation contrary to section 74 of the Acts.
Accordingly, I find in favour of the respondent in this case.
Dated: 23rd August 2018.
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
Employment Equality Acts – discriminatory treatment – conditions of employment – age – victimisation – no prima facie case