ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019795
A Civil Servant
A Trade Union
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 25/04/2019
Workplace Relations Commission Adjudication Officer: Roger McGrath
In accordance with Section 25 of the Equal Status Act, 2000,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 a Civil Servant who suffers from a disability. She has made a complaint against her trade union. She submits that the first incident of discrimination took place on 2 November 2018. A complaint was lodged with the WRC on 10 February 2019.
The respondent, a trade union, submits that it is not an organisation comprehended by section 5 of the Equal Status Act 2000, as the organisation does not engage in the disposal of goods or the provision of services to the public or sections of the public. The respondent is a membership organisation registered under the Trade Union Act 1941, with the Registrar of Friendly Societies. Further the respondent submits that section 2 does not include a membership organisation such as a trade union within the definition of services.
In essence, the respondent is saying that it is precluded from being considered a person or body to which the Act applies by reason of the fact that its services can only be enjoyed by its members and such membership is limited to a particular group.
In the Equal Status Acts under Section 2, "service" is defined as a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes -
(a) access to and use of any place
(b) facilities for - (i) banking, insurance, grants, loans, credit or financing (ii) entertainment, recreation or refreshment (iii) cultural activities, or (iv) transport or travel (c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service
In examining the definition of service in the Act, it is very broad and includes a service or facility which is available to the public generally or a section of the public. I am of the view that a trade union can be defined as a service to a certain section of the public and therefore it constitutes a service within the meaning of section 2 of the Equal Status Acts.
In considering this matter, I take note of the case of G-v- The Department of Social Protection 2015 [IEHC] 419 wherein Ms Justice O'Malley (albeit obiter) considers that the Equal Status Act 2000 should have a broad and inclusive interpretation as far as can be fairly done and that having regard to the Act, it was clear that it was a remedial statute which therefore must be liberally construed.
In light of the above, I find that the respondent is a body obliged not to discriminate in the disposing of goods and/or in providing a service to a section of the public.
Summary of Complainant’s Case:
The complainant submits that she has been discriminated against by the respondent by reason of her disability.
The complainant submits that since March 2018, due to a necessary reduction of one of her drugs, her overall physical condition has deteriorated. This situation was not helped by the long commute she undertakes to her place of work. In short, her quality of life has decreased, and she is finding it increasingly difficult to come to work.
On 10th July 2018, the complainant spoke with her Employee Assistance Officer who advised the complainant of several options open to her, including that she could request a transfer to an office closer to her home, based on her disability. On the same day the complainant also contacted the Disability Liaison Officer of her Department who sent the complainant a Workplace Accommodation Form, which the complainant completed and sent back with the requested medical documentation. The complainant also contacted her union official, who advised her to do go along with whatever the Department suggested.
The complainant was informed that her case would have to be referred to the Chief Medical Officer (CMO). The complainant did not think this was necessary as the letters from her medical consultants clearly confirmed her disabilities and their recommendations. The complainant was advised by her union official that she should agree to this course of action.
On 4th September 2018, the Department’s HR manager emailed the complainant, attaching a letter from the CMO which made it clear that the CMO had no role in decisions regarding transfers. The email also outlined reasons for the Department’s refusal to accede to the complainant’s transfer request.
The complainant was disappointed with this outcome and contacted her local union official requesting that the union set up a meeting with the Department’s HR manager to discuss the matter. A meeting was arranged in the union’s headquarters for 2 November 2018.
The complainant submits that at this meeting she made it clear that although she understood the Department’s view on transfers, she was making her request for a transfer based on her dis-improved health, something she had not envisaged when she took up her post in Dublin. The complainant was told there were no appropriate vacancies in Nenagh or Limerick (the offices nearest her home). According to the complainant, the HR manager also made remarks which she found to be upsetting and insulting. The complainant felt her union official should have intervened and not allow her to be harassed in this way.
The complainant submits that at this meeting, her union official stated that it would not be fair if she, the complainant, were to “jump the queue” and get a transfer to an office nearer her home and that she would be inundated with calls from other employees on the transfer list. The complainant was taken aback at this statement as it seemed to her that her union official did not want her to get her reasonable accommodation. The complainant views the statement of her union official as discriminatory in an indirect way; the complainant’s argument being that while dealing with all transfer requests in the same way seems neutral, it puts those with a disability, like her, at a disadvantage. The complainant was told that her request was being refused. The complainant expected her union official to object but she did not.
The complainant felt she was getting no advice and little support from the union. The complainant corresponded with her union official by email to advise her of this. She asked the union official to keep any notes from the meeting they had had with the Department’s HR manager. She also asked if the union official would attend a hearing as a witness. The complainant received no reply to this email until she emailed the union official a copy of the ES1 form which she, the Complainant had sent to the HR Department. The union official advised the complainant that the union could not be party to a case in the Workplace Relations Commission (WRC) which they had not lodged and that she had kept no notes from the meeting with the HR manager.
When the complaint received this e-mail, she rang the union official and told her that she had not yet launched the case with the WRC and that the ES 1 form was merely a notification. In response the complainant’s union official said that she would speak to another union person about arranging a meeting with the complainant to discuss her case.
The complainant got to speak with the second (full-time) union official sometime later. She found his tone to be aggressive. According to the complainant the second union official made several statements with which she found issue; (i) that the union would not take a case on her behalf as she would not win. (ii) that a transfer wasn't a reasonable accommodation but that this only refers to items like special desks and chairs etc. (iii) that the union would not favour one member over another (iv) that a transfer would not cure a disability (v) that if the complainant reverted to a lower grade then the union would support her.
The complainant requested that the union official put this in an email. This email stated that the union could not support an application that would put the complainant ahead of others who were seeking a transfer and that the union could not support her claim above other people who are seeking a transfer.
The complainant submits that this is indirect discrimination. The complainant replied to this email the same day and in her email, she asked what the second union official had meant when he stated that the union will not favour one member above another. The union official replied that the role of the union is to ensure that all members are treated in a fair and transparent manner. That the union cannot favour one case over another.
The complainant submits that the union feels that seeking reasonable accommodation based on her disability is not fair and that she should not receive this concession. When the complainant asked him what he meant by stating in his phone call that a transfer would not cure a disability, he answered, if your disability is causing you problems at work then the location of that work is not the issue. The complainant found these statements degrading humiliating and offensive.
The complainant contacted this second union official to try and get clarification on some of his remarks. In reply she received an email which stated that unless the CMO certified that the complainant should be transferred ahead of others on the transfer list because of your disability, he did not see the union bringing a case to the WRC. The complainant submits that this is a new suggestion and if this is the case it should have been mentioned to her previously. The complainant submits that the union had given her no advice on the process of seeking redress and that the union has tried to prevent her from doing so. The complainant questioned the second union official about this by email on the 5th of December 2018 and he refused to answer as he felt it was a “futile exercise”. After this the complainant felt it necessary for her to take this matter to the WRC.
The complainant gave direct evidence at the hearing to support her written submission. She stressed that her complaint was caused by the actions of the union officials and because the union had failed to support her and had chosen not to represent her at the WRC. In the complainant’s view the union should have supported her better than it did and should have represented her in the WRC. From her perspective it was perfectly clear against whom she was taking the case when she sent the union the E.S 1 Form, yet it took one month for her to get a response.
The complainant feels that she was obstructed in her attempts to get reasonable accommodation and the union's lack of action regarding this only served to increase her stress. Eventually, as the union would not assist her, she was forced to take legal advice.
Summary of Respondent’s Case:
The respondent provided a detailed written submission.
By way of background the respondent submits that the complainant is employed in the Department of Employment Affairs & Social Protection (DEASP) and was promoted to the post of HEO in June 2017. This promotion required her to give an undertaking that she would work in Dublin for a minimum of three years.
This condition is a standard requirement and movement to a post outside the initial location after this period is dependent on the transfer policy of the Department for the grade in question. There is no internal transfer policy agreement between the respondent and the Department for the Higher Executive Officer (HEO) grade. Up to 2015, the Department operated an informal transfer policy agreement by which an officer could seek to transfer within the grade to another location dependent on when he/she registered a request with the Human Resources Section.
The respondent accepted this informal arrangement to ensure a fair process of internal transfer to all officers in the grade to enable them to move between locations. Since 2015, the Department policy has been to fill all HEO vacancies by promotion rather than transfer. Any decision on the facilitation of a transfer request is one for the Department. The union does not have the authority or facility by which to sanction the transfer of a staff member or a post.
In July 2019, the complainant contacted her local union official, who is an employee of the Department, seconded to the union to assist in the orderly management of union/employer affairs, seeking advice on difficulties she was in countering with travelling from her home in Nenagh to Dublin for work. The complainant said she suffered from a disability, which had deteriorated since she had accepted the promotion a year previously.
The union sought to assist the complainant in her dealings with HR, including attendance with her at a meeting with the HR manager. An exchange of phone calls and emails took place in the months up to December including with the full-time Union official assigned at that time to the Department.
The complainant was unhappy with the advices and representational support provided by the union officials and directly approached the WRC without assistance or approval from the union and eventually logged a complaint against the union at the WRC, under the Equal Status Act.
Notwithstanding the respondent’s view that this complaint is invalid under the Equal Status Act, the union argues that it does not and cannot provide a service to transfer members to posts in other locations. The employing department has full discretion in the assignment of staff either by recruitment, promotion or transfer.
Furthermore, the respondent argues that the complainant has not exhausted the internal procedures available to her as a member of the trade union and consequently it is inappropriate procedurally for the complaint to proceed before the WRC at this time.
The current union Code of Service Standards provides that a senior official is assigned to oversee the application of the code and to investigate any complaint received if deemed appropriate.
A right of appeal to an external ombudsman is provided for where a complaint is unhappy with the decision of the senior official on foot of his or her investigation.
On foot of an email sent by the complainant to the General Secretary on 14 January 2019, a senior official was appointed. On 16 January this senior official contacted the complainant to advise that he would investigate the matter and revert to her in due course. The union's Legal Support Committee reviewed the case at the General Secretary's request. This committee felt it needed to access medical information other than the letter from the CMO which had been forwarded by the complainant. The senior official emailed the complainant on 30 January 2019, advising her of developments and asking her to send on further medical documentation she might have which would assist and offering representations by him with the Department HR with a view to exploring how reasonable accommodation might be achieved.
The respondent submits that by email on 3 February 2019, the Complainant appeared to advise that she had lodged her own case at the WRC against the Department and that she had engaged a solicitor. The senior official replied pointing out that the internal appeal process within the Department remained open to the complainant but noted her decision to go outside the union and advised that he would now step back from representing her, which is the standard procedure within all unions.
The respondent submits that on 10 February 2019, a formal complaint against the union was lodged with the WRC. Consequently, the senior officer assigned to investigate the complaints made against the union officials could not now continue as to do so as it would risk the application of fair procedures for the parties involved and create the potential for prejudice in either process.
The respondent submits that the complaints against the union officials are effectively stalled. The respondent cannot address the specific incidents of alleged discrimination set out in this complaint as it has not completed its own internal process and established the facts of the alleged incidents. The respondent submits that the complainant has misunderstood the provisions of the Equal Status Act and indeed the Rules and Procedures of the Union. The formal investigative process within the union remains open to the complainant and it is argued that this is the appropriate mechanism by which to process the issues of concern in the first instance.
Findings and Conclusions:
Reviewing the WRC Complaint Form, including the detailed narrative supplied by the complainant, I find that there are two allegations of prohibited acts being taken by the respondent.
Allegation 1; that the union's refusal to support her claim /fight for reasonable accommodation (a move to Nenagh), on the grounds that all members looking for transfers are treated the same, irrespective of disability, amounts to indirect discrimination.
Allegation 2; that the complainant did not get the service and support she should have done from the respondent in relation to advice and support on getting reasonable accommodation for her disability and the respondent's refusal to represent her at the WRC.
Section 38A (1) of the Acts provides that the burden of proof is:
"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred. Therefore, the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
Section 4 of the 2000 Act states:
Discrimination on ground of disability.
4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.
(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.
(5) This section is without prejudice to the provisions of sections 7(2)( a), 9( a) and 15(2)( g) of the Education Act, 1998,in so far as they relate to functions of the Minister for Education and Science, recognised schools and boards of management in regard to students with a disability.
(6) In this section—
“provider of a service” means—
( a) the person disposing of goods in respect of which section 5 (1) applies,
( b) the person responsible for providing a service in respect of which section 5(1) applies,
( c) the person disposing of any estate or interest in premises in respect of which section 6(1)(a) applies,
( d) the person responsible for the provision of accommodation or any related services or amenities in respect of which section 6(1)(c) applies,
( e) an educational establishment within the meaning of subsection (1) of section 7 in relation to any of the matters referred to in subsection (2) of that section, or
( f) a club within the meaning of section 8(1) in respect of admission to membership or a service offered to its members,
as the case may be, and “service” shall be construed accordingly;
“providing”, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly.
In this instance, the complainant has alleged that the respondent's policy of non-differentiation between members seeking transfers amounts to indirect discrimination against disabled members.
Indirect discrimination may take place where "an apparently neutral provision puts a person, [as a member of a group covered by a particular protected ground], at a particular disadvantage compared with other persons" who are not a member of that group. (For example, a height requirement). The rule is apparently neutral: it does not discriminate directly on any of the protected grounds, since it applies irrespective of gender, nationality, age, etc. However, women could argue that the rule, which is apparently neutral as regards gender, actually disadvantages women far more than men and hence discriminates indirectly against women.
Indirect discrimination is subject to a further test: it may still be lawful if it is "objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."
In considering this allegation I must firstly consider whether the complainant has provided enough evidence to establish the presumption of a prohibited act or a prima facie case.
In order to determine whether the complainant has established a prima facie case a three-tier test is employed:
First, the complainant must establish that she is covered by the relevant discriminatory ground.
Second, she must establish that the specific treatment alleged has actually occurred.
Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.
In this instant case, the agreed facts of the case are that the complainant is covered by the disability ground. It is common case that the union did not advocate for a transfer or her especially because of her disability.
In considering the third tier of the test, the fact that the treatment was less favourable than what would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground has not been proven.
From the evidence adduced there is no doubt that the complainant was told by her union representatives that she would have to stand in line for a transfer, the same as everyone else. This was not denied by the respondent.
The respondent's rebuttal is that the union had no say in the transfer of its member, that this was a matter solely for the Department. Quoting from the Respondent's submission; " Any decision on the facilitation of a transfer request is one for the Department. The Union does not have the authority or facility by which to sanction the transfer of a staff member or a post."
The complainant's allegation however, is not that the union failed to get her transferred, but rather that the union, in light of her disability, it did not advocate for such a move on her behalf.
The question to be answered in this case is this; is the union perpetrating a policy which indirectly discriminates against members with disabilities by not advocating their requests for transfer ahead of members who do not have a disability?
I find it is not. The complainant was not treated any less favourably because of her disability than any other member of the union; everyone was treated the same, there was no difference in the treatment she received than any other member of the union seeking a transfer would have been received. What the complainant was seeking in this instance was to be treated more favourably than others.
I find that the complainant has not established a prima facie case and her complaint therefore cannot succeed.
No evidence was adduced to support the second allegation of discrimination. While the service she received may not have been what it should have been, I do not believe that the complainant has established facts on which a presumption of prohibited conduct can be based. The complainant was supported by her local union official and latterly a full-time union official. The union’s stance on not representing members who independently take complaints to third party forums is a well-stablished protocol.
I find that the complainant has not established a prima facie case and her complaint therefore cannot succeed.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I find the complaint to be unfounded.
Dated: 16th August 2019
Workplace Relations Commission Adjudication Officer: Roger McGrath
Trade union, discrimination, transfer, representation, support.