ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014519
Accenture Ireland Limited
Lucy O'Neill, Mason Hayes & Curran 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: 15/08/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
In accordance with Section 79 of the Employment Equality Acts 1998 - 2015, this complaint was assigned to me by the Director General. On August 14th 2018, I conducted an enquiry into the complaint and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaint.
While he said that he got advice from the Independent Workers Union, the complainant attended the hearing without representation and was not accompanied. He said that he had a disagreement with his union representative about how his complaint should be handled and he dispensed with his services. This is the reason he attended the hearing without representation. At his request, an Arabic interpreter helped him to set out his case. The respondent was represented by Ms Lucy O’Neill, Solicitor, and a HR Manager from the respondent organisation also attended.
This complaint, ADJ-00014519, is a complaint of discrimination on the disability ground. The complainant also submitted a complaint on the ground of race and a decision has been reached on this matter under the reference ADJ-00014522.
The complainant is an Egyptian national and he joined the respondent company in 2013 as an agency employee. On August 13th 2014, he secured a job as a direct employee. He works as a collections analyst, with responsibility for collecting payments from the respondent’s clients in Europe, the Middle East and Africa.
The complainant has been absent from work since August 2017. Medical certificates submitted at the hearing show that he was diagnosed with depression for the first time in March 2016. Subsequent medical certs up to the date of the hearing indicate that he is suffering from stress, stress related symptoms and work-related stress.
The Burden of Proof
The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.
“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
The effect of this is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, he has been treated less favourably than an employee who does not suffer from depression.
Preliminary Issue – Timeframe for Seeking Redress
Was the Complaint Submitted on Time?
In his complaint form, the complainant said that the most recent date on which discrimination occurred was August 29th 2017. He sent in his complaint on May 2nd 2018. For the respondent, Ms O’Neill submitted that the complainant has exceeded the six-month time limit set out in section 77(5) of the Employment Equality Act. At the hearing, I explained to the complainant that, in accordance with the legislation, he is required to submit a complaint within six months of the date of the last incident of discrimination, unless, in accordance with section 77(6), exceptional circumstances prevented him from doing so.
Explaining the reason for the delay, the complainant said that he submitted a grievance to his employer on December 25th 2017. Evidence submitted at the hearing shows that the grievance was in respect of three matters; the days of the week on which the complainant was expected to attend work, his start and finish times and the fact that he was placed on a performance improvement plan in August 2017. Following an investigation into these grievances, a report was issued on January 26th 2018.
As he was unhappy with the outcome of the investigation into his grievance, the complainant initiated an appeal against the report’s finding. On February 14th 2018, he met with a new investigator and outlined his dissatisfaction with the initial report’s findings in respect of his start and finish times and the performance improvement plan. As part of this review, meetings also took place with the complainant’s team leader and with his team manager and with the senior manager in charge of the collections team. The investigator concurred with the findings of the initial report and this was communicated to the complainant on April 6th 2018. It is the complainant’s position that this was the last date on which discrimination occurred, and not on August 29th 2017, as he stated on his complaint form.
The complainant proposed that the day on which the outcome of his appeal against the investigation into his grievance was communicated to him, April 6th 2018, is the latest day on which discrimination, if it occurred, could be said to have occurred. I agree with this proposal, because the complainant was required to exhaust the internal procedures available to him and to allow his employer to reach a definitive conclusion with regard to his grievance. On this basis, I am satisfied that his complaint was submitted on time.
Summary of Complainant’s Case:
In this document, the complainant’s written quotes are reproduced in their exact form.
Before the hearing date, in an e mail to the WRC before the hearing, the complainant summarised his complaint as follows:
“My case with Accenture.
“You can find in the attached all emails proof of my case for the below 4 points:
“1 I get my contract after 2 years working with them, HR provided after I get sick.
“2 Time attends, I am the only one required from him to send email when I come and when I leave.
“3 PIP plan, They did place myself on PIP plan (while I am over achieved my targets) because of my performance, I did email my managers and HR to provide me the performance figures for the month before or 6 months to see how I am not achieved my targets no one did provide this figures till this moment.
“4- HR did suspended myself and my salary now and she don’t want to replay my emails because she did want to involve myself in investigation I am not in title to.”
The Complainant’s Requirement to Work Sunday to Thursday
The complainant was an agency worker for a number of months before he was recruited directly by the respondent on October 13th 2014. He said that he was successful in his application for the job because he was good at his work and got on well with his colleagues.
At the interview for the permanent role, the complainant said that he went to great lengths to ensure that his shift was from Sunday to Thursday, because, for family reasons, he wants to be off work on Fridays. At the hearing, he said that this was important because of his religious commitments. He said that when he started in the job, he asked his team leaders about a contract that confirmed that he worked from Sunday to Thursday, but he didn’t get a contract. He said that they just said “yes” and “don’t worry” but in late 2016, his team leader started to put him under pressure to work on Fridays instead of Sundays.
The complainant was absent from work due to stress from August 2017 and on October 24th, a member of the human resources department wrote to him to confirm his weekly schedule:
“The purpose of this letter is to confirm that, with effect from 1/6/2015, your work schedule formally changed from Monday – Friday to a Sunday – Thursday working week. The contractual hours remained the same (39 hours per week).
“Your contractual salary increased from €24,500 to €28,175. The fact that your normal work week includes Sunday as a work day is reflected by a 15% premium on the standard salary for this position and in included in your salary.
“For the record, I note that you agreed to this change at the time it was implemented and have worked the new hours without issue or objection for over two years.”
The Complainant’s Request to Change his Start and Finish Times
The normal start and finish time in the complainant’s team was 8.15am to 5.00pm. One person worked from 7.15am to 4.00pm due to the geographical area he dealt with.
On May 22nd 2017, following a request from the complainant, his start time was changed to 7.15am and his finish time to 3.55pm. This resulted in a working week that was 20 minutes short of the standard 39-hour week. The complainant was required to make up one hour at month-end, the busiest time for the accounts payable team.
On May 31st, at a meeting with his team leader, it was confirmed to the complainant that he was to stay for one hour extra that day. He was also to make up two hours from time lost the previous day. The team leader said that he could not work the extra hours on Sunday.
The complainant was unhappy about this instruction and replied to his manager, “Is that a kind of law and I don’t know it. I will recover those hour on Sunday, that the time suit my health conditions. Please if you don’t like, do not replay to this email and escalate me to HR.” The next day, he declined a request to meet with his managers to discuss the hours of work issue, saying, “I am not ready to talk about anything, when I feel better I will let you know guys to have a chat or meeting, whatever you want.”
At the hearing, the complainant said that his doctor recommended that he join a gym. He said that he could only go in the early evening. On July 3rd 2017, he proposed a shorter working week of 30 minutes each week, and proposed that he would make up two hours every month-end. The next day, his team leader said that he could work from 8.15am to 5.00pm or 7.30am to 4.15pm. The complainant replied on July 5th saying, “I do have family reasons and personal reasons not allow me to accept your two options. I do need to be home early @ maximum 5 o clock pm.” In his submission to the WRC, the complainant said that he and his wife had a new baby and that he needed to be home early so that he could let his wife go to work. In the e mail he outlined his specific requirements:
“What can suite me and I am asking you to please accept is…7.20 to 3.55 plus 40 min I do more on Sundays as this is the only day in week I can stay late. Just to explain the 5 min early I do need to leave early to can catch the train because otherwise I will stay for almost one hour to wait the next train.”
The complainant’s proposal to work from 7.20am to 3.55am meant that he worked for 40 minutes less from Monday to Thursday. He asked if he could make this time up by working for 40 additional minutes on Sundays. At the hearing, the respondent’s representative explained that, due to the markets that the complainant was assigned to, there was very little work for him to do on Sundays, and that there was no point in putting in extra time on that day.
On August 20th, a member of the HR team wrote to the complainant and said that “all individuals are expected to work their contractual hours (39 hours per week) and that it was not feasible to work additional hours on a Sunday due to business demand.” He concluded the mail saying, “Going forward you will work from 7.25am to 3.55pm.”
As a result of this change to his start and finish times, the complainant was permitted to work 7.5 hours each day, equivalent to 37.5 hours per week instead of a standard 39-hour week. He was required to work one hour extra to make up one hour at month-end, but not on a Sunday.
Performance Improvement Plan
A copy of an e mail submitted at the hearing shows that a meeting took place with the complainant and his team leader on May 14th 2017. The subject of the meeting was the team leader’s concern about the complainant’s performance and the complainant’s request to report to a different supervisor. On May 22nd, following a meeting with the complainant, his team leader and a more senior manager, he was given specific direction with regard to the gap between his performance and what was required, and he was informed that he would continue to report to his current line manager. The note of the meeting also records that there was a problem with how the complainant took his break during the day.
A copy of a performance improvement plan (PIP) that commenced on July 3rd 2017 was submitted at the hearing. The stated aim was to assist the complainant’s professional development and to set out objectives that he was required to meet based on noted areas for improvement. Weekly meetings were scheduled in the plan and the complainant was expected to achieve the goals set out in the plan by August 21st 2017. In his submission to the WRC, the complainant said that his team’s target was raised based on his performance. He sought a rationale for putting him on a PIP but he said he never got a response. In his submission, he said that his employer would “find a way to make my performance not good.” He said that when he received the PIP document for signing, he asked for details about his performance for the last two or three months, but he did not receive a response.
In summary, the complainant said that he is “never treated like an Irish person in our team.” He said that he is the only Arabic Muslim person on the team and, from an equality perspective, he wanted to be treated the same as his colleagues.
As a result of what he described as “stress and bullying,” the complainant said the he went into a deep depression and he went absent from work in August 2017. He said that he tried to go back to work and he returned for two days on September 11th and 12th 2017, but he got to the point where just seeing his managers made him depressed.
Summary of Respondent’s Case:
How the Respondent Handled the Complainant’s Grievances
On December 25th 2017, three years into his employment with the respondent, the complainant lodged a grievance under three headings; his request to work Sunday to Thursday, his start and finish times and the fact that he was on a PIP. The respondent claims that the complaint submitted to the WRC under this reference, ADJ-00018885-001, is the same as the grievance filed with the company on December 25th 2017. His submission made no mention of equality or discrimination on any ground. The company dealt with the grievance in accordance with its grievance procedure and a report was issued in January 2018.
The complainant’s grievance about Sunday working was upheld and the investigator noted that the issue had been resolved and that confirmation of the Sunday work arrangement had been confirmed in writing to the complainant on October 24th 2017. His grievance about his start and finish times was not upheld and the report noted that the managers of the team where the complainant worked had made efforts to facilitate him. Lastly, his grievance in respect of the PIP process was not upheld and the investigator noted that examples of performance problems were provided to the complainant for the period leading up to the commencement of the PIP on July 3rd 2017.
As he was absent from August 2017, the complainant attended for an examination by the company’s occupational health consultant in January 2018 and he was considered to be fit to return to work. He did not return and submitted medical certs from his GP stating that he was suffering from work-related stress.
The complainant appealed the findings of the investigation into his grievance. In a report dated March 20th 2018, the outcomes of the original investigation were upheld. In his report, the HR Manager who conducted the appeal recommended that on the complainant’s return to work, a mediation process take place between him and his managers “to endeavour to re-establish a solid working relationship.” At the meeting to appeal against the findings of the grievance report, the HR Manager asked the complainant what the ideal outcome from the grievance process would be for him. The complainant said that he would like to move to a new team and he asked the HR department to identify a role for him. The HR Manager said that responsibility for applying for any new role rests with the employee and that the recruitment team would assist him with contacting the relevant person to apply for a different role.
The Respondent’s Position
For the respondent, Ms O’Neill argued that, for his claim of discrimination on the ground of disability to succeed, the complainant must demonstrate that he has suffered less favourable treatment than a comparable employee who hasn’t got a disability. It is the respondent’s view that the complainant has not provided any evidence of discrimination on the grounds of disability, or on any ground. Their view is that the complainant has a personal grievance with one of his managers. The contents of his complaint to the WRC is an exact copy of the grievance he lodged with the respondent on December 25th 2017. It makes no allegation of discrimination and no such allegation was raised during the grievance process. They also argue that the complainant has failed to put forward a comparator to show that he has been treated in a discriminatory manner, compared to someone without a disability.
Complaint of Harassment on the Ground of Disability
The complainant alleges that he has suffered from harassment because of his disability. For his complaint to succeed, the respondent argues that he must demonstrate that he has suffered some form of unwanted conduct which is related to his disability which had the purpose of violating his dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him. The respondent argues that none of this occurred. While the complainant may have had issues with how his team manager supervised him, these issues were dealt with in the grievance process and there is no evidence to suggest that they had any connection with the fact that the complainant was suffering from depression.
Complaint of Victimisation on the Ground of Disability
The complainant also alleges that he has suffered from victimisation because of his disability. In the respondent’s submission at the hearing, Ms O’Neill referred to section 74(2) of the Employment Equality Act 1998 (“the Act”) and the definition of victimisation:
“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.”
Ms O’Neill referred to the case of the Public Appointments Service v Roddy, EDA 1019, where it was established that, to meet the burden of proof under the Act, the complainant must establish that there is a causal connection between the action taken at (a) to (g) of section 74(2) above and the alleged adverse treatment of the employer. She also referred to the Labour Court decision in the case of Toni & Guy Blackrock Limited v Paul O’Neill  ELR1, which sets out what has come to be known as the “but for” test. To meet this test, the employee must show that “but for” having carried out a protected act, they would not have suffered a detriment that amounted to victimisation. The complainant did not carry out any protected act and can not therefore establish a claim of victimisation.
Complaint that the Respondent Failed to Provide Accommodation for the Complainant’s Disability
It is the respondent’s position that the complainant did not provide any evidence of the disability that he allegedly suffers, the reasonable accommodation he required in order to facilitate his disability or how the respondent failed to provide reasonable accommodation.
The respondent argued that the complainant has not reached the probative burden of proof required to sustain a claim of discrimination. From their perspective, it appears that the complainant has a personal grievance against his manager which should be dealt with in the company. Their position is that there is no evidence that the complainant has been discriminated against. Aside from this claim, Ms O’Neill stated that the company made reasonable efforts internally, through its grievance procedure, to have the complainant’s issues investigated. In July 2018, the complainant was offered a role on another team so that he would not have to report to the manager that he didn’t get on with. He said that he had no interest in the role he was offered. He also rejected the opportunity to engage in mediation with his team leader and team manager and to get support from the employee assistance programme.
On May 28th 2018, the company’s occupational health consultant recommended that the complainant was fit to return to work. He returned the following month but things didn’t go well because he didn’t adequately carry out the tasks assigned to him. This resulted in an investigation into his conduct, but he refused to participate.
On August 9th 2018, the respondent’s HR Manager met the complainant to see if there was anything that could be done to facilitate his return, but the complainant was not willing to consider any proposals. When he attended the hearing of his complaint on August 15th 2018, he had been absent from work for one year.
Findings and Conclusions:
The Primary Facts
Having reviewed the documents submitted by the complainant in anticipation of the hearing on August 15th 2018, it is evident that the complaints are exactly the same as those presented to the respondent as a grievance on December 25th 2017. The details have already been set out in this document. There is no reference in his complaint to discrimination or poor treatment of him due to his depression.
Having worked from Sunday to Thursday for two years, the complainant’s line manager wanted him to work from Monday to Friday. The reason was because the market that the complainant worked in didn’t have much activity on Sundays and there wasn’t enough work to do. In an e mail to a member of the HR team in late 2016 the complainant wrote:
“I need to arrange a meeting with you regarding this because simply I don’t agree on what he asking me…”
The complainant went on to outline his reasons for not agreeing to change his work schedule. He did not consider why he was being asked to work on Fridays instead of Sundays, but said,
“Regarding my family, the Sunday will destroy everything if I didn’t work Sunday because I care about the baby in Friday because my wife working part-time and Friday it’s very important to our life because simply if I work Friday that mean I need to pay more money to someone to watch the baby on Friday with taking into consideration my salary will be less because I am not working Sundays, which it’s mean you make my salary less and asking me to pay more money which is great life!”
This matter was resolved when the complainant’s team leader agreed that he could continue to work his Sunday to Thursday schedule.
While the complainant needed to be at home on Fridays, he also needed to be home by 5.00pm on Monday to Thursday. His train journey home took about 40 minutes, with the result that he asked to change his start and finish time from 8.15am to 5.00pm to 7.20am to 3.55 pm. His manager agreed that he could work a shorter working day, from 7.25am to 3.55pm, and that he was to make up one hour at month-ends, but not on Sunday, when there wasn’t enough work to do. The complainant said that this didn’t suit him, for family reasons and that he needed to be home at “maximum 5 o clock.”
In July 2017, following a number of weeks during which the complainant did not carry out his job to the standard expected of his managers, he was put on a performance improvement plan. He rejected this plan out of hand and saw it as an example of his managers’ efforts to punish him for his tenacity in getting the working time schedule that he needed to suit his shared responsibility for minding his child.
The Burden of Proof
The complainant has alleged that his employer discriminated against him on the grounds of his disability by harassing him, victimising him and failing to provide him with reasonable accommodation for his disability. I must now consider if, based on the facts set out in his evidence, I can conclude that discrimination has occurred.
The complainant asked for an exception to be made for him so that he could manage his childcare arrangements. The respondent facilitated him in this regard. He never requested any special facilities to help him to manage his depression. It follows therefore than an employer cannot be expected to provide accommodation for a disability when that accommodation has never been asked for, informally or otherwise.
Having considered the complainant’s evidence, it appears that he viewed the efforts of his managers to align his performance with the expectations required of him as a form of harassment. He refused to countenance any review of his performance, although he never suggested that the reason he was not meeting his targets was due to depression. He simply refused to accept the authority of his managers.
With regard to victimisation, I find no evidence that the complainant took any action of a type referred to in section 74(2) of the Employment Equality Act. I have to conclude therefore that the adverse treatment that he alleges he suffered – the efforts of his managers to improve his performance – is not connected to a protected act and cannot therefore be considered under the heading of “victimisation.” In any event, I also conclude that the complainant was not subjected to any adverse treatment and it is my view that his managers and the HR team made considerable efforts to support him and to keep him at work.
As a person with depression, the complainant has a disability as defined at section 2 of the Employment Equality Acts 1998 - 2015. It is my view that his employer in no way discriminated against him because of his depression, or that he was discriminated against in any respect. The complainant has failed to discharge the burden of proof required to demonstrate that his absence arises from his employer’s failure to provide him with reasonable accommodation for his depression, or that he was harassed because of his depression or that he was victimised for carrying out a protected act. Having listened to the evidence of the complainant and having reviewed all the documents submitted, I have come to the simple conclusion that the complainant was under pressure on a daily basis to ensure that he could be home for 5.00pm and sadly, this is the root of many of his problems.
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 Acts.
I have concluded that the complainant has failed to discharge the burden of proof which requires him to establish the primary facts that can be relied upon to establish a complaint of discrimination. Based on this conclusion, I have decided that his complaint fails.
Dated: December 17th 2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Discrimination, disability, reasonable accommodation